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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ALAN EARP, :

Petitioner, : CIVIL ACTION

:

v. :

:

THOMAS LAVAN, et al., :

Respondents : NO. 04-1991

MEMORANDUM AND ORDER

McLaughlin, J. February 15, 2006

In this pro se habeas petition, the petitioner has

raised several prosecutorial misconduct and ineffective

assistance of counsel claims stemming from his 1992 conviction

for first degree murder and possessing an instrument of crime. 

The petitioner was convicted of murdering Aaron Pendleton in

1991. The petitioner was 16-years-old at the time of the murder

and he received a sentence of life in prison.

The Court agrees with the report and recommendation of

the Chief United States Magistrate Judge M. Faith Angell that the

petitioner’s petition for habeas corpus should be denied and

dismissed. The Court will write separately with regard to some

of the petitioner’s claims in light of the Court’s independent

review of the petition for habeas corpus and the petitioner’s

objections to the report and recommendation.

Specifically, the Court adopts the following sections

of the report and recommendation: the background section, section

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1 The petitioner raised this claim on direct appeal, but

framed the issue as a state law claim. The respondents argued

that because the petitioner did not raise this as a claim based

on federal law in state court, the claim is not exhausted. 

The petitioner did not reference the United States

Constitution or cite to federal law when this issue was raised in

state court. However, in considering whether a claim has been

exhausted, a court should look to “the substance of the claim

presented to the state courts, rather than its technical

2

I of the discussion regarding the timeliness of the petitioner’s

claims; section II. A. of the discussion regarding the legal

standards for exhaustion and procedural default; section II. C.

holding that the petitioner’s sixth and seventh habeas claims are

procedurally defaulted; and section III of the discussion

regarding the standard of review of state court proceedings. 

The Court will write separately with respect to the

remaining sections of the report and recommendation. All of the

issues the petitioner has raised are claims of prosecutorial

misconduct or ineffective assistance of counsel. 

I. Prosecutorial Misconduct Claims

The petitioner has raised three claims of prosecutorial

misconduct (identified in grounds one, two and five of his habeas

petition). Specifically, the petitioner has alleged that the

prosecutor: (1) inflamed the passions of the jury by invoking

sympathy during closing; (2) consistently ignored the trial

court’s order not to mention a prior stabbing incident where the

petitioner allegedly stabbed the victim, Aaron Pendleton;1 and

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designation.” Evans v. Court of Common Pleas, 959 F.2d 1227,

1231 (3d Cir. 1992). 

A prosecutor’s comments can rise to the level of unfairness

so as to violate a defendant’s due process rights. See Darden v.

Wainwright, 477 U.S. 168, 181 (1986). The Court concludes that

the substance of this claim raised a federal claim, even if the

petitioner did not explicitly make reference to federal law. The

respondents concede that this claim was raised on direct appeal

and appealed to the Pennsylvania Supreme Court. Thus, the Court

concludes that the petitioner has exhausted this claim.

Additionally, the Superior Court only considered some of the

alleged improper references to the stabbing incident, and

concluded the other references were waived by the petitioner’s

failure to raise them in the Court of Common Pleas. However,

even considering all of the alleged improper references, the

Court will deny the petitioner’s habeas petition. Thus the Court

can reach the merits of this claim even if it has not been

exhausted. See 28 U.S.C. § 2254(b)(2).

2 The Court has serious reservations as to whether this

claim has been exhausted. Although the petitioner raised the

issue of prosecutorial misconduct during summation in the context

of the prosecutor improperly invoking sympathy on direct appeal

and appealed that issue up to the Pennsylvania Supreme Court, the

petitioner did not raise an objection to comments in the

prosecutor’s summation regarding the petitioner’s truthfulness

until he filed a PCRA petition. Because the petitioner did not

appeal the Superior Court’s decision denying his PCRA petition to

the Pennsylvania Supreme Court, it does not appear he has

exhausted this claim. Because the Court will deny the

petitioner’s habeas petition, the Court can reach the merits of

this claim even if it has not been exhausted. See 28 U.S.C. §

2254(b)(2).

3 The Court will consider the underlying prosecutorial

misconduct claims before considering the issue of whether the

petitioner’s counsel was ineffective for failing to request a

mistrial or pursue the issue on appeal.

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(3) improperly labeled the petitioner’s testimony as less than

truthful.2 With respect to (1) and (3) the petitioner argues

that his counsel was ineffective for failing to request a

mistrial or raise these issues on appeal.3 For (2) the

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petitioner argues that the state court erred by not granting a

mistrial. 

The Court agrees with the conclusions of the state

courts that the petitioner is not entitled to relief on the basis

of his prosecutorial misconduct claims and finds their

conclusions reasonable under existing Supreme Court precedent. 

Any improper statements made by the prosecutor during the trial

were not so egregious as to deny the petitioner a fair trial in

light of the substantial evidence of the petitioner’s guilt.

To grant a petition for habeas corpus based on claims

of improper comments by a prosecutor, a court must find that the

comments “so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (internal quotations

ommitted). A court should examine any offensive actions by a

prosecutor in the context of the trial as a whole. Moore v.

Morton, 255 F.3d 95, 107 (3d Cir. 2001). The severity of the

prosecutor’s actions, the effect of any curative instructions and

the evidence against the defendant should be considered. Id.

“[T]he stronger the evidence against the defendant, the more

likely that improper arguments or conduct have not rendered the

trial unfair.” Marshall v. Hendricks, 307 F.3d 36, 69 (3d. Cir

2002).

The petitioner’s first claim of prosecutorial

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misconduct concerns a statement made by the prosecutor during

summation, which, the petitioner argues improperly sought to

invoke the sympathy of the jury. In his summation, referring at

first to the petitioner, the prosecutor stated:

He’s going to live with that the rest of his life. 

He’s 17 years old, but what about Aaron Pendleton, he

was 17 years old, too? He doesn’t even have the

opportunity to decide what’s going to happen with his

life, his life is gone, the mother and his parents have

to live with that for the rest of their lives.

What about the age of the deceased, the victim, the man

who was pleading for his life, the young man hardly

more than a child pleading for his life, crying, we’re

supposed to forget that, forget his age and it’s only

the age of the defendant that counts?

(Trial Tr. 57-58, Sept. 24, 1992). 

The petitioner’s second claim of prosecutorial

misconduct argues that the prosecutor repeatedly ignored the

trial court’s ruling that a prior incident where the petitioner

allegedly stabbed the victim was inadmissable.

In his opening statement, the prosecutor stated that

there was a prior incident where the petitioner stabbed the

victim on a bus. (Trial Tr. 22, Sept. 21, 1992). The prosecutor

then presented the testimony of Michael Jones who testified that

there was a prior incident on a bus where the petitioner stabbed

the victim. (Trial Tr. 9, Sept. 22, 1992). The petitioner’s

trial counsel did not object to this testimony or the

prosecutor’s opening argument, explaining that it was part of his

trial strategy to show a history of disputes between the

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petitioner and the victim. (Trial Tr. 9-10, Sept. 22, 1992).

The prosecutor then presented the testimony of Justin

Williams who also testified about the stabbing incident. Mr.

Williams testified that the petitioner chased the victim off the

bus and around nearby cars with a knife. (Trial Tr. 46-51, Sept.

22, 1992). At this time, the trial judge called counsel to

sidebar, said he found the testimony “terribly prejudicial,” and

ordered the jury to ignore any testimony about a prior incident

with a knife. (Trial Tr. 52-59, Sept. 22, 1992). Despite this

ruling by the trial court, the prosecutor subsequently made

several references to this stabbing incident.

Immediately following the trial court’s ruling, the

prosecutor asked Mr. Williams:

All right. So, you said – we were at the point where

you say you saw – you didn’t see the defendant here

pick up the knife, but you saw him at some point?

(Trial Tr. 59, Sept. 22, 1992). An objection was immediately

sustained. The prosecutor then offered to withdraw the witness,

but in doing so stated:

Very well. I’ll have to – in view of your honor’s 

ruling, I would have to excuse the witness. Your honor

wishes to hear nothing further about knives.

(Trial Tr. 60, Sept. 22, 1992). Another objection was sustained. 

Despite the prosecutor’s offer to withdraw the witness,

defense counsel conducted a short cross-examination in which the

issue of the petitioner chasing the victim was raised. 

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Thereafter, on redirect examination, the prosecutor continued to

question Mr. Williams about the stabbing incident as follows:

Q. All you saw is this defendant chasing the

deceased, is that right, Aaron?

A. Yeah.

Q. Then you saw when Aaron came back, he said, “Look,

I’m stabbed”?

(Trial Tr. 61-62, Sept. 22, 1992). Defense counsel objected

again and moved for a mistrial. The objection was sustained, but

the motion for a mistrial was denied. The trial court once again

instructed the jury to disregard any reference to a knife or

stabbing.

The following day, the prosecutor once again continued

to make reference to this stabbing incident. In cross-examining

a defense character witness, John Banner, the prosecutor asked:

All right. Now, among the persons whom you’ve had

these discussions with, that the defendant is a

peaceful person, was there ever any discussion of an

incident where he chased somebody around a car?

(Trial Tr. 10, Sept. 23, 1992). The trial court sustained

another objection and instructed the jury to disregard the

question.

Later that day, during the recross-examination of

another defense witness, Naaem Frisby, who testified that the

petitioner was upset the night of the shooting, the prosecutor

asked:

Did you know if he was upset at his prior incident that

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happened involving a knife?

(Trial Tr. 27, Sept. 23, 1992). After an objection, the

prosecutor withdrew the question. The trial court denied another

motion for a mistrial, but once again instructed the jury in the

“strongest possible terms” to disregard the question concerning

the knife incident.

The prosecutor continued to make reference to this

incident though. When the petitioner took the stand on direct

examination, he made reference to previous incidents between

himself and the victim, but did not testify to the details of

these incidents. In his cross-examination of the petitioner, the

prosecutor asked:

Now, you mentioned the previous incident, sir, you

brought it up, not I, you said that you were afraid of

him because of a previous incident. In other words, it

made you terrified of this man because you stabbed him?

(Trial Tr. 79, Sept. 23, 1992). Yet another motion for a

mistrial was denied, but the jury was instructed to disregard the

reference to a stabbing. 

Finally, following some generalized references to a

prior incident some months ago involving the petitioner and the

victim by the petitioner’s trial counsel in his summation, the

prosecutor made three more references to this stabbing incident

during his closing argument. First, with respect to an incident

where the victim assaulted the petitioner the night the victim

was killed, the prosecutor stated:

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Another fact is the thing that necessitated or caused

this instance was a prior incident wherein the

defendant was pursuing the deceased, and you heard what

happened. 

Second, referring to testimony that witnesses saw the

petitioner chase the victim prior to shooting him, the prosecutor

stated:

[W]hen you see that person [the victim], he starts to

run away from you and you start to chase him and you’re

afraid of him? I mean, does that make sense? I’m

afraid of somebody I’m chasing and that person is

running away. He had chased this person once before,

the deceased, he chased him around cars.

Finally, the prosecutor argued:

And we know there was a prior incident where he [the

petitioner] demonstrated such a propensity in chasing

the deceased, trying to make it sound like it’s so

completely out of character, like this is something

that never happened before in the whole life of this

individual. Nonsense.

We listened to or [sic] Orwin Greene, sounds like it’s

very much in character for him to do this, very much in

character. And if you listen to the witness Justin

Williams who testified, when he said when the deceased

said, remember, “My God, what’s this man doing?” He

ran away. That’s what the deceased said when he was on

the bus. I mean, this isn’t the first time, this isn’t

anything so unusual, but there’s more.

(Trial Tr. 44-59, Sept. 24, 1992). Defense counsel objected to

the first two arguments, but not the third. Additionally, some

references by the prosecutor to the petitioner chasing the victim

all the time were objected to. (Trial Tr. 51, Sept. 24, 1992). 

Following the petitioner’s trial counsel’s objections, the trial

judge stated that the jury’s recollection will control.

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The petitioner’s third claim of prosecutorial

misconduct concerns statements made during the prosecutor’s

summation which referred to the petitioner’s testimony as less

than truthful. The prosecutor made two such statements in his

summation. First, referring to testimony by the petitioner that

he forgot certain aspects of the shooting, the prosecutor stated

that:

Why did he say that? He virtually admitted everything

else he said. Well, this other business that’s

happened about the shooting and the man begging for his

life and he pointed the gun at other people’s heads,

I’m not denying that, and I’m just going to say I can’t

remember it, can’t remember it because he doesn’t want

to admit what he did in front of his family. How do

you forget something like that?

That is something that’s less than truthful, just as it

was less that truthful when he said he was not looking

for the man, he didn’t load the gun. The last witness

that testified said his intention was to shoot him,

that was his declared intention as he had declared it

even an hour and a half before, his intention was to

shoot, to kill, and he wasn’t going to be stopped, he

was determined he was going to do what he was going to

do and nobody could stop him.

He said that he was fearful. So we know that when he

testified that way, the defendant, he was less than

truthful. He was not fearful. 

(Trial Tr. 47-48, Sept. 24, 1992). Second, once again referring

to the petitioner’s testimony that he did not remember certain

aspects of the shooting, the prosecutor stated, “[y]ou believe he

forgot that, there’s a bridge I’d like to sell you.” (Trial Tr.

53-54, Sept. 24, 1992). Defense counsel did not object to either

of these arguments.

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Some of these challenged statements by the prosecutor

were in response to arguments or questioning by the petitioner’s

trial counsel. Specifically, the prosecutor may have

understandably believed that the defense counsel opened the door

to some of the questions and statements regarding the prior

stabbing incident. Although some of the challenged questions and

comments may have been justified, the petitioner is correct in

his assertion that the prosecutor made some improper comments.

The prosecutor improperly attempted to invoke sympathy

for the victim and his family. Although it is true that the

petitioner’s trial counsel made reference to the petitioner’s

age, those references were part of counsel’s argument that the

petitioner did not have time to cool down because of his youth. 

The prosecutor’s statements regarding the victim’s age did not go

to the issue of whether the petitioner was in the heat of

passion. Instead, these statements had no other purpose beyond

invoking sympathy from the jury for the victim and his family. 

Although some of the references to the stabbing

incident may have been justified by the defense counsel’s

repeated generalized references to a past incident involving the

petitioner and the victim, the trial court was quite clear that

specific references to a stabbing or knives were inadmissable. 

Additionally, the three references in the prosecutor’s closing

arguments to an incident that was clearly held to be inadmissable

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were not proper, and the Court finds that the prosecutor’s third

reference to the stabbing incident during summation that

suggested the petitioner had a propensity for violence was

particularly prejudicial. Finally, although it was appropriate

for the prosecutor to make arguments regarding the petitioner’s

credibility during closing, the prosecutor should not have

injected his personal opinion into summation by explicitly

characterizing the petitioner’s testimony as “less than

truthful.”

Although the Court finds that some improper remarks

were made by the prosecutor, that does not end the inquiry. The

key question is not the culpability of the prosecutor, but the

effect of the improper remarks on the petitioner’s rights. 

Marshall v. Hendriks, 307 F.3d 36, 68 (3d Cir. 2002). Some of

the effects of these remarks were cured by the trial court’s

instructions. The trial court instructed the jury following

closing arguments that their determination of the facts should

not be affected by sympathy and that the jury is to judge the

credibility of the petitioner. Furthermore, throughout the

trial, the judge was clear that the jury was not to consider any

evidence regarding the stabbing incident.

That said, curative instructions do not mitigate all

forms of prosecutorial misconduct. Donnelly v. DeChristoforo,

416 U.S. 637, 644 (1974). However, even if the curative

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4 The petitioner did suggest on direct examination that he

acted in self defense when he saw the victim reach for something,

but that theory was not pursued by his trial counsel. There were

numerous witnesses that saw the petitioner chase the victim with

a gun prior to the shooting and there was testimony that after

the first shot, some time elapsed before the second fatal shot

was fired while the victim was pleading for his life. Thus,

there was overwhelming evidence with which the jury could have

found that the petitioner did not act in self defense.

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instructions alone were not effective to mitigate the improper

statements by the prosecutor, in light of the overwhelming

evidence against the petitioner, any such statements by the

prosecutor did not deny the petitioner a fair trial. See

Marshall, 307 F.3d at 69.

Numerous eyewitnesses testified that the petitioner was

the person who fatally shot the victim. Although the petitioner

claimed not to remember the actual shooting, the issue of who

shot the victim was not seriously contested at trial. In fact,

the petitioner’s trial counsel effectively conceded the issue of

who shot the victim in his closing argument.

Instead, the petitioner’s defense was based on the

argument that he killed the victim in the heat of passion, and

thus he did not commit first-degree murder, but a lesser degree

of homicide.4 Even on this point though, the evidence against

the petitioner was substantial. 

Although the victim and a friend assaulted the

petitioner the night of the shooting, approximately two hours

elapsed between the fight and the shooting. The evidence showed

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5 The Court agrees with the report and recommendation’s

reasoning regarding the denial of the petitioner’s claims of

ineffective assistance of counsel based on arguments that his

trial counsel failed to seek out expert witnesses and that his

trial counsel did not contact witness that might have rebutted

certain prosecution witnesses.

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that during that time, the petitioner went home, located a gun,

took a shower, went to a party, located the victim, chased him

and then shot him twice. The second shot was fired after the

victim was already immobilized and pleading for his life. 

In light of the overwhelming evidence against the

petitioner and the curative instructions given by the trial

court, any improper statements by the prosecutor do not raise any

doubt regarding the integrity of the verdict. Looking at the

trial as a whole, the Court concludes that the state court

decisions were reasonable, under existing Supreme Court

precedent, in their conclusion that any improper remarks did not

deny the petitioner a fair trial.

II. Ineffective Assistance of Counsel Claims

The petitioner has raised seven claims of ineffective

assistance of counsel, five of which the Court will write

separately about.5 The petitioner bases his ineffective

assistance of counsel claims on arguments that his trial counsel:

(1) failed to seek a mistrial based on the prosecutor’s

statements during summation that inflamed the passions of the

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6 As was the case with the underlying prosecutorial

misconduct claim, the Court has serious reservations whether this

claim has been exhausted. Because the Court will deny the

petitioner’s habeas petition, the Court can reach the merits of

this claim even if it has not been exhausted. See 28 U.S.C. §

2254(b)(2).

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jury and failed to raise this issue in post-verdict motions; (2)

failed to withdraw and failed to properly cross-examine a witness

whom the petitioner’s trial counsel represented in an unrelated

juvenile criminal matter; (3) presented defense witnesses whose

testimony supported the prosecution’s case; and (4) failed to

seek a mistrial after the prosecutor characterized the

petitioner’s testimony as less than truthful during summation.6

The petitioner also claims that his appellate counsel failed to

raise all issues regarding trial counsel’s ineffectiveness on

direct appeal.

With respect to the petitioner’s claim that his

appellate counsel did not raise all claims regarding his trial

counsel’s ineffectiveness on appeal, the report and

recommendation concluded that this argument did not raise a

separate cause of action, but that it simply supported other

claims by the petitioner. Even assuming that this claim is an

independent claim, it has not been exhausted and is now

procedurally defaulted. The Superior Court did not reach this

issue on the merits finding that it was not raised in the

petitioner’s PCRA petition and the petitioner did not appeal that

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decision to the Pennsylvania Supreme Court. Therefore this claim

will be denied.

That leaves four remaining ineffective assistance of

counsel claims. The Court will consider these claims on the

merits. To state an ineffective assistance of counsel claim, the

petitioner must show that his trial counsel’s performance was

deficient and that the deficient performance prejudiced the

defense at trial. Strickland v. Washington, 466 U.S. 668, 687

(1984). To demonstrate prejudice, the petitioner “must show that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694. 

The Pennsylvania Superior Court, on direct appeal,

denied the petitioner’s claim that his trial counsel was

ineffective because he did not move for a mistrial following the

inflammatory comments made by the prosecutor during summation

because the underlying prosecutorial misconduct claim lacked

merit. The Superior Court, on collateral review, denied the

petitioner’s claim that his trial counsel was ineffective because

he failed to seek a mistrial after the prosecutor characterized

the petitioner’s testimony as less than truthful for the same

reason. 

Because the underlying prosecutorial misconduct claims

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did not produce an unfair trial, the Court agrees with and finds

reasonable the Superior Court’s decision that the petitioner’s

trial counsel was not ineffective for failing to seek a mistrial. 

Furthermore, any claims that the petitioner’s trial counsel was

ineffective for failing to raise issues related to alleged

prosecutorial misconduct in post-verdict motions are also denied

because the underlying claims lack merit.

The Court will consider the petitioner’s two remaining

claims that his trial counsel was ineffective due to a conflict

of interest and because he called witnesses helpful to the

prosecution in turn.

First, the petitioner’s conflict of interest claim is

based on the fact that his trial attorney also represented a

government witness in an unrelated juvenile proceeding and that

representation was ongoing at the time of the petitioner’s trial. 

During his rebuttal case, the prosecutor called Melvin Valle who

testified regarding his interactions with the petitioner on the

night of the shooting. The petitioner’s trial counsel was not

aware that Mr. Valle would be called as a witness. He was not on

the witness list and the prosecutor represented that he had only

been found recently. After the trial court allowed Mr. Valle to

testify, the petitioner’s trial counsel brought the conflict to

the trial court’s attention. The petitioner’s trial counsel

indicated that he spoke with Mr. Valle and that Mr. Valle

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permitted the petitioner’s trial counsel to cross-examine him and

the trial court allowed the case to proceed. There is nothing on

the record that indicates the petitioner ever objected to or

consented to this arrangement.

The Superior Court considered this issue on direct

appeal and concluded that the petitioner’s claim failed because

his trial counsel acted reasonably in not impeaching Mr. Valle

and that there was no evidence which would show that the

petitioner’s trial counsel possessed any confidential information

that would have affected his cross-examination of Mr. Valle.

There are two potential ways a petitioner can proceed

on a conflict of interest claim. A petitioner can demonstrate an

actual conflict or, a petitioner can proceed under a conventional

ineffective assistance of counsel analysis. 

When a petitioner did not raise any objections to a

conflict at trial, to demonstrate an actual conflict, the

petitioner must demonstrate: (1) some plausible alternative

strategy or tactic that might have been pursued (this defense

need not have been successful, but it must have been a viable

alternative); and (2) that the alternative defense was inherently

in conflict with or not undertaken because of the attorney’s

other duties or loyalties. United States v. Morelli, 169 F.3d

798, 810 (3d Cir. 1999). “An actual conflict exists only if the

proposed alternative strategy (a) could benefit the instant

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defendant and (b) would violate the attorney’s duties to the

other client.” Id. at 811. 

If an actual conflict exists, the petitioner need not

show he was prejudiced. Id. at 810. If the petitioner cannot

show an actual conflict, he may still proceed under a

conventional ineffective assistance of counsel claim and must

demonstrate prejudice. Id. at 810 n.15.

Here, the petitioner claims that his trial counsel

should have crossed Mr. Valle on his juvenile crimes and use of

aliases. The Court concludes that an actual conflict did not

exist because cross-examining Mr. Valle on his juvenile crimes

and use of aliases would not have been a viable alternative

strategy. 

Although Mr. Valle was a prosecution witness, he gave

some testimony that was helpful to the petitioner’s voluntary

manslaughter defense. Specifically, Mr. Valle, who had known the

petitioner for three years, testified that a short time before

the victim was shot, the petitioner looked “crazy,” that he did

not appear to be in his right mind and that in three years, Mr.

Valle had never seen the petitioner in such a state. (Trial Tr.

20-22, Sept. 24, 1992). Mr. Valle also offered testimony harmful

to the petitioner, when he testified that prior to the shooting

the petitioner stated he was going to kill the victim, that he

loaded a gun and that Mr. Valle and a friend tried unsuccessfully

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to talk the petitioner out of shooting the victim. (Trial Tr.

10-13, Sept. 24, 1992).

Most of the testimony given by Mr. Valle that would

support premeditation, was already in the record. The petitioner

himself had testified that he went home and got a gun, though he

denied loading it. (Trial Tr. 68, Sept. 23, 1992). 

Additionally, previous witnesses testified that the petitioner

stated he was going to shoot the victim following their

altercation earlier that day.

In light of this, the petitioner’s trial counsel chose

not to impeach Mr. Valle, but instead focused his crossexamination on bringing to light statements that the petitioner

looked “crazy” and was acting abnormally in an attempt to

establish a voluntary manslaughter defense. The Court concludes

that given the evidence introduced before Mr. Valle took the

stand, it would not have been a viable alternative strategy to

impeach Mr. Valle when he provided some testimony that was

helpful to the petitioner’s voluntary manslaughter defense and

when much of the harmful testimony he gave was already in

evidence. 

 Thus, the petitioner has not demonstrated an actual

conflict of interest. Furthermore, the petitioner cannot succeed

under a conventional ineffective assistance of counsel claim

because he was not prejudiced by any ineffectiveness on behalf of

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his trial counsel. Even if the petitioner’s trial counsel’s

ongoing representation of Mr. Valle, although not an actual

conflict, nevertheless rendered him ineffective, because of the

overwhelming evidence against the petitioner, the petitioner

cannot demonstrate a reasonable probability that the outcome

would have been any different had his trial counsel either

withdrawn or cross-examined Mr. Valle along the lines proposed by

the petitioner. See Strickland, 466 U.S. at 694. Therefore, the

Court finds that the Superior Court’s decision to deny the

petitioner’s ineffective assistance of counsel claim based on a

conflict of interest was reasonable under existing Supreme Court

precedent.

Additionally, though not raised explicitly, the Court

notes that the petitioner’s brief in support of his habeas

petition makes reference to a failure by the trial court to ask

the petitioner about his attorney’s conflict of interest. 

Although the Supreme Court has mandated that such an inquiry take

place, a new trial is only appropriate if the petitioner can show

an actual conflict or that he was prejudiced. Mickens v. Taylor,

535 U.S. 162, 172-74 (2002). Because the petitioner cannot make

either of these showings, any claim that was raised regarding the

trial court’s failure to inquire into the petitioner’s attorney’s

conflict of interest is denied. 

The petitioner’s final ineffective assistance of

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22

counsel claim is that his trial counsel called as defense

witnesses, individuals who provided testimony helpful to the

prosecution. The Superior Court denied this claim on direct

appeal and concluded that the challenged witnesses bolstered the

argument put forth by the petitioner’s trial counsel that the

petitioner was only guilty of voluntary manslaughter. 

The three witnesses that are challenged by the

petitioner are Naaem Frisby, Orwin Green and Hanif Edens. All of

these witnesses did corroborate the prosecution’s case in that

they testified that they saw or heard shots fired, that the

victim fought with the petitioner a few hours before the shooting

and that following the fight, the petitioner threatened to kill

the victim. However, these witnesses also furthered the

voluntary manslaughter argument raised by the petitioner’s trial

counsel by testifying that the petitioner was angry, mad and/or

upset following the fight. 

A court should not find a defense attorney to be

constitutionally ineffective simply because a strategy that was

pursued at trial did not work. Strickland, 466 U.S. at 689. The

petitioner’s trial counsel acted reasonably in presenting these

witness to further the voluntary manslaughter theory despite the

fact they offered some testimony harmful to the petitioner. 

Thus, the Court finds that the Superior Court’s conclusion that

the petitioner’s trial counsel was not ineffective for calling

Case 2:04-cv-01991-MAM Document 24 Filed 02/15/06 Page 22 of 25
7 The Court has considered the petitioner’s ineffective

assistance of counsel claims separately because they raise

different legal issues. However, even when viewing the combined

effect of all the petitioner’s ineffective assistance of counsel

claims, the Court concludes that the petitioner was not

prejudiced by any alleged ineffectiveness on behalf of his

attorneys.

23

these witnesses was reasonable under existing Supreme Court

precedent. Furthermore, even if calling these witnesses

demonstrated that the petitioner’s trial counsel was ineffective,

the Court finds that the petitioner was not prejudiced.7 Even

ignoring the testimony of these witnesses, the evidence against

the petitioner was overwhelming and the overall result of the

trial would not have been different.

For the foregoing reasons, as well as the reasons

stated in the sections of the Report and Recommendation adopted

by this memorandum, the petitioner’s claims are denied and

dismissed. Because the petitioner has not made a substantial

showing of the denial of a constitutional right, the Court will

not issue a certificate of appealability. 

 An appropriate Order follows.

 

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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ALAN EARP, :

Petitioner, : CIVIL ACTION

:

v. :

:

THOMAS LAVAN, et al., :

Respondents : NO. 04-1991

ORDER

AND NOW, this 15th day of February, 2006, upon careful

and independent consideration of the petitioner’s Petition for

Writ of Habeas Corpus (Docket No. 1), the petitioner’s Memorandum

of Law in Support, the respondent’s Response and the petitioner’s

Traverse to the Answer and after review of the Report and

Recommendation of the Chief United States Magistrate Judge M.

Faith Angell (Docket No. 17), the petitioner’s objections

thereto, and the respondents’ response, IT IS HEREBY ORDERED

that:

1. The Petitioner’s objections are OVERRULED;

2. The Report and Recommendation is ADOPTED, with

certain modifications outlined in a memorandum of

this date;

3. The Petition for Writ of Habeas Corpus is DENIED

AND DISMISSED without an evidentiary hearing; and

Case 2:04-cv-01991-MAM Document 24 Filed 02/15/06 Page 24 of 25
2

4. The Petitioner has failed to make a substantial

showing of a denial of a constitutional right;

thus, a certificate of appealability is DENIED.

BY THE COURT:

 /s/ Mary A. McLaughlin

MARY A. McLAUGHLIN, J.

Case 2:04-cv-01991-MAM Document 24 Filed 02/15/06 Page 25 of 25