NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 15

- 3550

____________ FRANK JEFFS , Appellant

v. SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS; THE DIST RICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE AT TORNEY GENERAL OF THE STATE OF PENNSYLVANIA

____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2

- 14

- cv - 00827 ) District Judge: Honorable Jan E. DuBois

____________ Submitted Under Third Circuit L.A.R. 34.1(a)

November 9, 2017 Before: SMITH, Chief Judge , HARDIMAN , Circuit Judge , and

BRANN, District Judge

. * (Filed: November 16, 2017 )

* The Honorable Matthew W. Brann, United States District Judge for the Middle District of Pennsylvania, sitting by designation.2 ____________ OPINION * *

____________ HARDIMAN, Circuit Judge

. Frank Jeffs appeals an order of the District Court denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Because the state courts did not unreasonably apply Strickland v. Washington , 466 U.S. 668 (1984) , we will affirm.
I On a spring morning in Philadelphia, firefighters found Robert Kerwood, Jr. sitting in his SUV with a bullet in his brain

. The district attorney charged petitioner Frank Jeffs with Kerwood’s murder. Jeffs admitted shooting Kerwood from the driver’s seat of
his own car , but claimed he had acted in self

- defense after Kerwood followed him, drove into his lane, and “point[ed] something black and shiny at [ him ] , ” App. 336, all the while screaming death thr eats out an open window. Unpersuaded, the jury convicted Jeffs of first

- degree murder , along with possession of a n instrument of crime

. The Pennsylvania
courts affirmed that verdict both on direct appeal and in collateral proceedings under the Pennsylvania Post

- Conviction Relief Act (PCRA). See 42 Pa. Cons. Stat. § 9501 et seq
. After exhausting his remedies in state court, Jeffs petitioned the District Court for a writ of habeas corpus. Among other claims not relevant to this appeal, Jeffs argued that his trial counsel was constitutionally ineffective for failing to call a s a witness Joseph

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.3

Criniti , a friend of Kerwood’s who had testified previously that Kerwood had a history of aggressive behavior behind the wheel

. Concluding that the Pennsylvani a Superior Court did not apply Strickland unreasonably , the District Court denied the petition under 28 U.S.C. § 2254(d) (1)

. T his Court subsequently granted a certificate of appealability limited to the question of whether the failure to call Criniti as a witness amounted to ineffective assistance of counsel.
I I 1 Based on Criniti’s testimony at a prior hearing, the PCRA c ourt characterized Criniti’s anticipated trial testimony as follows: Criniti testified that he had known [Kerwood] for abo ut 15 years. He indicated that, while riding as a passenger in [Kerwood’s] vehicle, he had observed [Kerwood] yelling out the window at other drivers, spitting at them, and giving other drivers the finger

. . . . He confirmed that not only had he warned [Ke rwood] about his behavior but that he had knowledge that a couple of [Kerwood’s] friends had done so as well. Mr. Criniti testified that these incidents of road rage that he had observed had occurred about eight or nine years earlier. App. 319 (internal citations omitted). At trial, as the defense case wound to a close, the judge asked Jeffs’s lawyer whether he still intended to call Criniti. Although the judge had already ruled that Criniti’s testimony would be admissible , counsel replied that he did not wish to call Criniti because he did not want to open the door to evidence of Kerwood’s peaceful character

. The district attorney confirmed that it planned to present

1 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 2241(a). We have jurisdiction under 28 U.S.C. §§ 1291 and 1253.4

such evidence if Criniti testified, but did not identify a ny witnesses . The trial judge then inquired whether Jeffs agreed with the decision not to call Criniti and Jeffs concurred

. T he Superior Court held that Jeffs had not been denied effective assistance, “as trial counsel’s advice [ not to call Criniti] was b oth legally sound and rationally

- based trial strategy.” App. 346

– 47. The Superior Court did not explain its reasons for this conclusion. Pennsylvania’s standard for ineffective assistance of counsel “constitute[s] the same rule” as that announced in Strick land

. Commonwealth v. Pierce , 5 27 A.2d 97 3,
976 ( Pa. 1987). We therefore review the Superior Court’s decision to d etermine whether it unreasonably applied Strickland

. The question on appeal is whether the Superior Court’s application of Strickland ’s performance

- and

- prejudice standard was so beyond the pale “that no fair

- minded jurist could agree with it.” Johnson v. Lamas , 850 F.3d 119, 135 (3d Cir. 2017).
III Where , as here, the state court decide s a habeas p etitioner’s claim on the merits
withou t explanation, we “must determine what arguments or theories

. . . could have supported [] the

. . . decision; and then

. . . 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 , 562 U.S. 86, 102 (2011). Jeffs argues that the decision not to call Criniti was objectively unreasonable for two

reasons . First, Jeffs argues that our decision in Branch v. Sweeney , 758 F.3 d 226 (3d Cir. 2014), compels a finding of deficient performance because Criniti’s testimony “tended to5

exculpate [ Jeffs ] and aligned almost perfectly with [Jeffs’s] account of what happened. ” Reply Br. 9 (quoting Branch , 758 F.3d at 238). Criniti’s testimony, however, is quite unlike the evidence left unpresented in Branch

. Our decision in that case was based on our judgment that it was “difficult to see how the jury could have returned a guilty
verdict

. . . if it credi ted [the uncalled witnesses’] testimony.” Branch , 758 F.3d at 236.
We analogized the unpresented testimony , if credited, to testimony that identified a different perpetrator altogether. Id. Criniti’s evidence was not so compelling

. Even under the best of c ircumstances, a reasonable jury could have fully credited Criniti’s testimony that Kerwood had a reputation for aggressive driving and still convicted Jeffs of first

degree murder. And Jeffs’s counsel had significant reason to doubt that the best would

com e to pass . For one thing, Criniti’s evidence of Kerwood’s character was stale. Although his original statements to the police did not indicate such staleness, Criniti later clarified that the only incidents of aggression he recalled had taken place eight o r nine years prior

— “nothing recently,” in Criniti’s words. App. 49 ( Tr. 21:10

– 22:11). Moreover, Criniti, who was a close friend of Kerwood’s, had declared himself a hostile witness. At an evidentiary hearing to determine his testimony’s admissibility , Criniti insisted that he was “not going to cooperate with [Jeffs’s counsel].” App. 45 (Tr. 6:16

– 22). Jeffs’s second point is that his lawyer’s performance was deficient because it was
uninformed. To be sure, it appears that Jeffs’s counsel decided not to call Criniti at least in part because he did not want to open the door to evidence of Kerwood’s peaceful
character , despite not knowing what that evidence would be

. And w e have held that6

uninformed decisions are not entitled to the ordinary deference th at the Strickland standard affords counsel’s strategic choices. See, e.g. , Rolan v. Vaughan , 445 F.3d 671, 682 (3d Cir. 2006). T here is no indication in the record, however, that the desire to close the door to evidence of Kerwood’s peacefulness was the so le basis for the decision not to call Criniti . Jeffs tries to charact erize one sentence in the PCRA c ourt’s decision as a factual finding to that effect, entitled to deference under 28 U.S.C. § 2254(e)(1)

. That attempt is unavailing. The PCRA c ourt’s bare recital adds nothing to Jeffs’s attorney’s own statement, which itself contained nothing to suggest that counsel had considered testimony as to Kerwood’s peacefulness to the exclusion of other concerns. Indeed, as the district attorney points out, “ i t would represent an exceptionally

. . . unrealistic view of the trial process to p resume that counsel considered only the prospect
of r ebuttal testimony. ” Commonwealth Br. 45 n.17. While we do not conjure scenarios that “ contradict ” the evidence of what c ounsel considered, “ neither [do we] insist counsel confirm every aspect of the strategic basis for his or her actions . There is a strong presumption that counsel’s attention to certain issues to the exclusion of others reflects
trial tactics rather than sh eer neglect. ” Richter , 562 U.S. at 109 (internal quotation marks and citation omitted)

. Because we have no factual finding about counsel’s thought process, 2 we must ask whether any theory provides reasonable support for the Superior Court’s conclusion th at the decision not to call Criniti was a n acceptable exercise of professional judgment. See

2 Jeffs’s trial counsel was unavailable to testify at the evidentiary hearing before the PCRA court because he was deceased.7

id

. at 102. We think one does. Criniti’s testimony about Kerwood’s trait of aggressiveness would not only have opened the door to evidence of Kerwood’s peaceful
character

— it would also have permitted the district attorney to introduce evidence of Jeffs’s aggressive nature. See P A
. R. E VID
. 404(a)(2)(B)(ii)

. The district attorney, if given the opportunity, plan ned to call Jeffs’s supervisor and coworker to testify that Jeffs was an aggressive man , and was not allowed to drive a truck at work because he was “ always yelling and screaming at other drivers

. ” App. 109

– 110 (Tr. 12:6

– 13:10 ). Jeffs’s counsel was well a ware that calling Criniti would open the door to strong evidence of Jeffs’s aggressive behavior . And the record clearly shows that during the trial, counsel weighed that possibility in deciding whether to call Criniti. App. 110 (Tr. 15:2

– 19) (noting that, given the evidence of Jeffs’s aggressiveness , calling Criniti would come “at my own peril or my client’s own peril”). Counsel knew that Criniti’s testimony
would have permitted the district attorney to introduce potentially devastating character evidence

. Criniti’s own testimony corroborated the defense case, but

— in light of the doors it would have opened and the risk of losing control of a hostile witness

— it was hardly so essential or so compelling that calling Criniti was the only reasonable choice.
On t his record, we cannot conclude that the Superior Court unreasonably applied Strickland

. * * * Applying our deferential standard of review to the state cour t’s decision that Jeffs’s counsel ’s performance was not constitutionally deficient, we will affirm t he judgment of the District Court

.