2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-26-2010

Palmer v. Hendricks

Precedential or Non-Precedential: Precedential

Docket No. 06-2991

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 06-2991

____________

WALI PALMER,

 Appellant

 v.

ROY L. HENDRICKS and PETER HARVEY

 

____________

On Appeal from the United States District Court 

for the District of New Jersey

(D.C. Civil Action No. 04-4455)

District Judge: Honorable Freda L. Wolfson

____________

Argued September 14, 2009

Before: SLOVITER, FUENTES, and ALDISERT, Circuit

Judges. 

(Opinion Filed: January 26, 2010)

____________
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Stephen M. Latimer, Esq. (Argued)

Loughlin & Latimer

131 Main Street, Suite 235

Hackensack, NJ 07601

Counsel for Appellant

Jack J. Lipari, Esq. (Argued)

Assistant Prosecutor

Atlantic County Prosecutor’s Officer

4997 Unami Blvd., P.O. Box 2002

Mays Landing, NJ 08330

Counsel for Appellees

____________

OPINION OF THE COURT

____________

FUENTES, Circuit Judge:

In 1999, a jury found Wali Palmer guilty of multiple

crimes related to a 1998 shooting death in an Atlantic City bar.

After he unsuccessfully appealed his conviction, Palmer sought

post-conviction relief in the New Jersey state courts, asserting

that his attorney had been constitutionallyineffective. The New

Jersey courts denied Palmer’s petition for post-conviction relief,

and Palmer thereafter filed a petition for a writ of habeas corpus

in the New Jersey District Court pursuant to 28 U.S.C. § 2254.

The District Court did not convene an evidentiary hearing and
-3-

dismissed Palmer’s petition. 

We granted Palmer’s application for a certificate of

appealability as to three issues: (1) whether Palmer’s trial

attorney rendered ineffective assistance of counsel by failing to

advise Palmer of his right to testify at trial and at a suppression

hearing, (2) whether his attorney was ineffective in failing to

inform Palmer that the choice of whether to testify was

ultimately Palmer’s to make, and (3) whether the District Court

should have held an evidentiary hearing to resolve these claims.

We conclude that Palmer failed to make a prima facie showing

of the prejudice element of his ineffective assistance of counsel

claims and that the District Court did not abuse its discretion in

declining to convene an evidentiary hearing to resolve Palmer’s

claims. 

I.

In March 1998, Palmer was attacked by a group of young

men at a bar in Atlantic City, New Jersey. During the scuffle,

Palmer pulled out a nine-millimeter automatic handgun and fired

two wild shots. One shot hit the leg of one of his attackers,

Shawn Brantley; the other shot hit and killed Palmer’s cousin,

Junior (Jerry) Cooper, who had been trying to help Palmer.

Palmer attempted to assist his cousin, but when he realized that

his cousin was not moving, Palmer fled the scene on a bicycle.

Police responded to the shooting, gathered a description of

Palmer from the wounded Brantley, and arrested Palmer a few

blocks from the bar. 

After his arrest, Palmer gave several incriminating

statements to the police. He later moved, pursuant to Miranda

v. Arizona, 384 U.S. 436 (1966), to exclude some of the
-4-

statements. Palmer did not testify during the suppression

hearing, and the record is silent as to whether he wanted to

testify, what the contents of his testimony would have been, and

whether his attorney discussed with him the possibility or

propriety of testifying. The trial court eventually admitted most,

but not all, of the statements.

Trial was conducted between June 15 and June 23, 1999.

After the State rested, Palmer and his attorney, Williams Harris,

Esq., engaged in two colloquies on the record, which became

relevant during the state post-conviction proceedings. First,

once the State had rested, the court and counsel discussed

whether all of the State’s exhibits had been admitted into

evidence, after which the following colloquy took place:

COURT: If there’s an oversight you suddenly

discover, we can deal with that. We’ll take a

recess to afford Mr. Harris to consult with his

client.

HARRIS: Thank you judge.

(Recess)

(After Recess)

(Whereupon the following took place out of the

presence of the jury)

HARRIS: We’re going to rest, judge.

COURT: Okay.

(App. 200.)

The next day, before the court charged the jury, the
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following exchange between the court, defense counsel, and

Palmer took place:

HARRIS: Can I have a moment off the record?

COURT: Sure.

(Off Record)

HARRIS: Your honor, I’d like to have you read

the defendant’s election not to testify charge to

my client so that we can make a decision on that.

COURT: I’ll be glad to do that.

HARRIS: Thank you.

COURT: Mr. Palmer, this is the charge that I give

to the jury, if you wish, and it reads as follows.

It’s the constitutional right of a defendant to

remain silent. I charge you that you are not to

consider for any purpose or any manner in

arriving at your verdict the fact that the defendant

did not testify, nor should that fact enter into your

deliberations or discussions in any manner or at

anytime. The defendant is entitled to have the

jury consider all the evidence, and he is entitled to

the presumption of innocence even if he does not

testify as a witness. 

HARRIS: Could I have one second, Judge?

(Discussion off the record. Counsel conferring

with Defendant.)

HARRIS: We’re going to ask that you do read it
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to the jury.

COURT: Mr. Palmer, you wish that given?

PALMER: Yes.

COURT: Thank you, I will. 

(App. 207.) 

The jury was charged and, after deliberating, it found

Palmer guilty of aggravated manslaughter, aggravated assault,

possession of a weapon for an unlawful purpose, and unlawful

possession of a weapon. Palmer was subsequently given a

sentence of twenty-two years for the manslaughter conviction,

a consecutive sentence of eight years for the assault conviction,

and a concurrent sentence of five years for the weapons

convictions. Palmer appealed the convictions and sentence,

challenging, among other things, the admissibility of the nonsuppressed statements and the severity of his sentence. The

New Jersey Appellate Division affirmed. 

After his direct appeal failed, Palmer filed a petition for

post-conviction relief. In his petition, Palmer argued that Harris

had been constitutionally ineffective for, among other things,

failing to advise him of his right to testify on his own behalf.

Palmer submitted with his petition a sworn affidavit that stated:

• That, my former trial attorney Mr.

Williams Harris had never informed me

about my right to testify prior to trial, or

that the decision not to testify was my

decision to make and not Mr. Harris’s.

• That, prior to going into the courtroom,
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Mr. Harris had c[o]me down to the bullpen

or holding cell area in the courthouse, and

I had asked Mr. Harris when he was going

to put me on the stand to tell my side of

what happened, and Mr. Harris had told

me that he was not going to put me on the

stand or testify or call me as a witness. 

• That, during my trial, the Judge began

reading something about me choosing not

to testify, and saying that I chose not to

testify, at which point I attempted to

respond by telling Mr. Harris that he’s

making it sound like I don’t want to tell

my side, and Mr. Harris tapped me to hold

up, and asked the judge for a second to

speak to me.

• That, Mr. Harris then told me that, because

he was not using me as a witness that the

judge has to read those things to the jury

so that they can’t hold anything against me

or bring up anything about me not taking

the stand, and that Mr. Harris at that point

still did not explain to me that I had a right

to testify or that the choice of whether to

testify was solely mine[] to make and not

his.

• That, prior to Mr. Harris telling me that he

was not going to put me on the stand, I

was under the impression that I would get
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to tell my side of what happened. 

• That, I would have taken the stand to

testify on my own behalf to explain my

side of what really happened if I was

allowed to do so.

(App. 87a-b.) In sum, Palmer argued that his trial counsel

never took the time to explain to him that the choice of whether

or not he would testify was for Palmer, not Harris, to make.

Palmer also argued that the trial record was inconclusive as to

whether Harris ever conveyed this information and that the jury

charge colloquy revealed little about whether Palmer understood

his right to testify. Accordingly, Palmer requested an

evidentiary hearing to subpoena Harris and develop the factual

record. Notably, Palmer did not set forth the facts to which he

would have testified had he taken the stand at his trial. 

The post-conviction relief (“PCR”) court rejected

Palmer’s petition without granting an evidentiary hearing.

Emphasizing the colloquy between the court and defense

counsel at the close of the State’s case, the PCR court found that

Palmer and his attorney had been afforded the opportunity for

Harris to counsel Palmer as to whether or not to testify.

Additionally, relying upon the colloquy between the court,

defense counsel, and Palmer just prior to the jury charge, the

PCR court found that Palmer understood that he had a choice

regarding whether to testify:

Then we get to what transpires with respect to the

charge. And Mr. Harris says, “Your Honor, I’d

like to have you read the defendant’s election not

to testify charge to my client so that we can make
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a decision on that.” So we’re talking about

defendant’s election not to testify, the defendant’s

right not to testify. Implicit in that is a right to

testify. And the charge that was read to him was

this: “The defendant in this case chose not to be a

witness.” First line in the charge. If you choose

not to be a witness, you can also choose to be a

witness. So by the charge itself, which was read

to the defendant, the defendant was told by me

with respect to his choices. He chose not to be;

implicit in that is a choosing to be. And the last

sentence of the charge . . . reads that, “The

defendant is entitled to have the jury consider all

of the evidence and he is entitled to the

presumption of innocence even if he does not

testify as a witness.” Implicit in that as well is the

fact that he can testify as a witness. To say that

he was never told that he could be a witness, I

think is belied by the transcript in this particular

case.

(App. 47-49.) The Appellate Division upheld this decision

“for substantially the same reasons,” but also took note of the

“pauses in the proceedings for discussions between trial counsel

and defendant,” which “belie[] defendant’s contentions that he

was unaware of his right to testify and that he had no

discussions with his attorney about that right.” (App. 32.) The

New Jersey Supreme Court denied certification. 

Having exhausted his state court remedies, Palmer filed

a habeas petition pursuant to 28 U.S.C. § 2254 in the District

Court. In his petition, Palmer claimed that his trial counsel had
-10-

been constitutionally ineffective; he likewise asserted a host of

additional issues not relevant to this appeal. The District Court

denied the entirety of his petition. With regard to the issue of

Palmer’s right to testify, the District Court quoted the language

of the PCR court, endorsing the portion of that opinion that

found that Palmer understood his right to testify, and rejected

the petition on the grounds that “the New Jersey Courts’

adjudication of the claims did not result in a decision that was

contrary to, or involved an unreasonable application of

Strickland or other Supreme Court holdings.” (App. 20.) The

Court declined to hold an evidentiary hearing and declined to

issue a certificate of appealability. 

Finally, Palmer appealed to this Court. We granted a

certificate of appealability with respect to Palmer’s claims that

his trial counsel rendered ineffective assistance of counsel for

“(1) failing to advise Appellant of his right to testify at trial and

at his suppression hearing and (2) failing to inform Appellant

that the choice whether to testify was ultimately his to make.”

(App. 23.) We also stated that the parties “shall address whether

the District Court should have held an evidentiary hearing to

resolve these claims.” (App. 23.) 

II.

The District Court exercised jurisdiction pursuant to 28

U.S.C. § 2254. We have jurisdiction over Palmer’s appeal

under 28 U.S.C. §§ 1291 and 2253.

The Anti-Terrorism and Effective Death Penalty Act of
 The relevant provisions of AEDPA provide: 1

(d) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated on

the merits in State court proceedings unless the

adjudication of the claim–

(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). 

-11-

1996 (“AEDPA”) “requires federal courts collaterally 1

reviewing state proceedings to afford considerable deference to

state courts’ legal and factual determinations.” Lambert v.

Blackwell, 387 F.3d 210, 234 (3d Cir. 2004). Factual

determinations made by the state court are presumed to be

correct, but may be rebutted by clear and convincing evidence.

See Simmons v. Beard, 581 F.3d 158, 165 (3d Cir. 2009) (citing

28 U.S.C. § 2254(e)(1)). Our standard of review is the same as

that of the District Court: because the District Court relied
-12-

exclusively on the state court record and did not hold an

evidentiary hearing, our review is plenary. See id. (citing Jacobs

v. Horn, 395 F.3d 92, 99 (3d Cir. 2005)). 

By its own terms, § 2254(d) only applies to claims

already “adjudicated on the merits in State court proceedings.”

Thus, if a properly preserved claim was not addressed by the

state court on the merits, the deferential standards of AEDPA do

not apply. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).

In such instances, “the federal habeas court must conduct a de

novo review over pure legal questions and mixed questions of

law and fact, as a court would have done prior to the enactment

of AEDPA.” Id. (citing McCandless v. Vaughn, 172 F.3d 255,

260 (3d Cir. 1999)). “However, § 2254(e)(1) still mandates that

the state court’s factual determinations are presumed correct

unless rebutted by clear and convincing evidence.” Simmons,

581 F.3d at 165 (citing Appel, 250 F.3d at 210). 

III.

A.

We address at the outset whether the District Court

abused its discretion when it denied Palmer’s habeas petition

without first convening an evidentiary hearing. We conclude

that because Palmer’s petition does not contain sufficient

“factual allegations, which, if true, would entitle the applicant

to federal habeas relief,” the District Court did not abuse its

discretion in declining Palmer’s request for an evidentiary

hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). 
 Under section 2254(e)(2), 2

[i]f the applicant has failed to develop the factual basis of

a claim in State court proceedings, the court shall not

hold an evidentiary hearing on the claim unless the

applicant shows that–

(A) the claim relies on–

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1. The Decision Whether to Hold an Evidentiary Hearing is 

Subject to the Discretion of the District Court

“Prior to AEDPA, new evidentiary hearings [in habeas

cases] were required in several circumstances.” Campbell v.

Vaughn, 209 F.3d 280, 286 (3d Cir. 2000) (citing Townsend v.

Sain, 372 U.S. 293, 313 (1963)) (emphasis in original). We

have been clear that “AEDPA, in contrast, permits evidentiary

hearings on habeas review, but only in a limited number of

circumstances.” Id. (citing 28 U.S.C. § 2254(e)) (emphasis in

original). In particular, a district court is permitted to hold an

evidentiary hearing on a claim asserted in a § 2254 petition so

long as such a hearing is not barred by 28 U.S.C. § 2254(e)(2).

Under that section, a habeas court is barred from holding an

evidentiary hearing unless the petitioner was diligent in his

attempt to develop a factual basis for his claim in the state court

proceedings, see Williams v. Taylor, 529 U.S. 420, 430 (2000);

Wilson v. Beard, 426 F.3d 653, 665 (3d Cir. 2005), or the

petitioner satisfies the criteria set forth in § 2254(e)(2)(A) and

(B).2
(i) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that

was previously unavailable; or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

(B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for

constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). 

 The Supreme Court has not held, and we do not 3

suggest, that a court is precluded from considering additional

factors in determining the appropriateness of an evidentiary

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“In cases where an applicant for federal habeas relief is

not barred from obtaining an evidentiary hearing by 28 U.S.C.

§ 2254(e)(2), the decision to grant such a hearing rests in the

discretion of the district court.” Schriro, 550 U.S. at 468; see

also Campbell, 209 F.3d at 287 (“AEDPA, unlike Townsend

and [Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)], does not

require that such a hearing be held. Instead, federal courts have

discretion to grant a hearing or not.”). Although such a decision

is discretionary, it is not unconstrained, and Schriro identifies

two related considerations that guide the habeas court’s exercise

of discretion. 

3
hearing. 

-15-

First, in determining whether or not to hold an

evidentiary hearing, courts should “consider whether such a

hearing could enable an applicant to prove the petition’s factual

allegations, which, if true, would entitle the applicant to federal

habeas relief.” Schriro, 550 U.S. at 474. In other words, courts

considering the appropriateness of an evidentiary hearing

should determine whether the petition presents a prima facie

showing which, if proven, would enable the petitioner to prevail

on the merits of the asserted claim. See, e.g., Campbell v.

Burris, 515 F.3d 172, 184 (3d Cir. 2008); Wells v. Petsock, 941

F.2d 253, 259 (3d Cir. 1991); Smith v. Freeman, 892 F.2d 331,

338 (3d Cir. 1989). The reasons underlying such a

consideration are self-evident—given “AEDPA’s

acknowledged purpose of reducing delays in the execution of

state and federal criminal sentences,” Schriro, 550 U.S. at 475

(quotation marks, citations, and brackets omitted), a court

should be reluctant to convene an evidentiary hearing to explore

the claims of a petitioner whose pleadings are factually

insufficient to suggest any entitlement to habeas relief. See,

e.g., Campbell, 515 F.3d at 184 (“bald assertions and

conclusory allegations do not afford a sufficient ground for an

evidentiary hearing”) (quoting Mayberry v. Petsock, 821 F.2d

179, 185 (3d Cir. 1987)); Anderson v. Att’y Gen. of Kansas,

425 F.3d 853, 858-59 (10th Cir. 2005) (to warrant an

evidentiary hearing, a habeas petitioner’s “factual allegations

must be specific and particularized, not general or conclusory”)

(quotation marks and citation omitted). 
As an initial matter, we note that Palmer was diligent 4

in his effort to develop the factual basis of his ineffective

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Second, “if the record refutes the applicant’s factual

allegations or otherwise precludes habeas relief, a district court

is not required to hold an evidentiary hearing.” Schriro, 550

U.S. at 474. That is, even if the factual allegations in the habeas

petition are sufficient to make out a prima facie claim for

habeas relief, a district court may decline to convene an

evidentiary hearing if the factual allegations are “contravened

by the existing record.” Id. (citation omitted); see also

Campbell, 209 F.3d at 290. As the Supreme Court has

explained, “[i]f district courts were required to allow federal

habeas applicants to develop even the most insubstantial factual

allegations in evidentiary hearings, district courts would be

forced to reopen factual disputes that were conclusively

resolved in the state courts.” Schriro, 550 U.S. at 475. 

With these twin considerations in mind, we turn to

Palmer’s petition to determine whether the District Court

abused its discretion when it dismissed the petition without first

convening an evidentiary hearing.

2. Palmer’s Inadequate Allegations of Prejudice

Because we find that the factual allegations underlying

Palmer’s contention that his trial counsel was constitutionally

ineffective are insufficient to show that he is “entitle[d] . . . to

federal habeas relief,” id. at 474, we conclude that the District

Court’s decision not to hold an evidentiary hearing was not an

abuse of discretion. 

4
assistance claim in the state PCR court, in that he submitted an

affidavit and requested that the state court convene a hearing on

his claim. See Williams, 529 U.S. at 430; see also Thomas v.

Horn, 570 F.3d 105, 125 (3d Cir. 2009) (“the petitioner’s

request for an evidentiary hearing in the state post-conviction

court, which was denied, show[s] sufficient diligence to render

Section 2254(e)(2) inapplicable”) (citing Thomas v. Varner,

428 F.3d 491 (3d Cir.2005)). Section 2254(e)(2) thus would

not have precluded Palmer from obtaining an evidentiary

hearing before the District Court. 

-17-

“The Strickland [v. Washington, 466 U.S. 668 (1984)]

standard is applicable when a petitioner claims his attorney was

ineffective by denying him his constitutional right to testify.”

Matylinsky v. Budge, 577 F.3d 1083, 1097 (9th Cir. 2009)

(citation omitted). The Strickland test has two prongs: the

petitioner must show (1) that counsel’s performance was

deficient, and (2) that the deficient performance prejudiced the

defense. Strickland, 466 U.S. at 687. The first prong requires

a petitioner to demonstrate that counsel made errors “so serious

that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id.; see also Taylor v.

Horn, 504 F.3d 416, 430 (3d Cir. 2007). Strickland’s second

prong requires a petitioner to show that the errors were

“sufficiently serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Strickland, 466 U.S. at 687. 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.” Id. at 694. 
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Palmer’s petition comes up short because it fails to make

an adequate showing of prejudice. See id. at 697 (“[A] court

need not determine whether counsel’s performance was

deficient before examining the prejudice suffered . . . . If it is

easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, which we expect will often be so,

that course should be followed.”). As we have noted, Palmer’s

claim for ineffective assistance of counsel turns on his

contention that his attorney failed to advise him of his right to

testify in his defense and failed to inform him that such a

decision was Palmer’s to make. Palmer’s contentions

concerning his attorney’s allegedly deficient conduct are fleshed

out in the affidavit Palmer submitted in support of his habeas

petition. What is not fleshed out in the petition, however, is a

factual basis suggesting that Palmer was prejudiced by his

attorney’s alleged conduct. Palmer’s affidavit states merely that

he “would have taken the stand to testify on [his] own behalf to

explain [his] side of what really happened if [he had been]

allowed to do so.” (App. 87b.) The brief he submitted in

support of his application for post-conviction relief adds

precious little to this bare-bones statement. In a conclusory

fashion, Palmer asserts that “because [he] was contending selfdefense, it was crucial for him to explain his version of the

events, especially[] since the requisite determination that the

jury had to make[] was ‘did the petitioner use force in the

reasonable belief that such force was necessary to prevent his

death or serious injury,[’] and there is nobody who could

explain what his mental state was better than the petitioner . . .

.” (App. 87r.) In sum, we know that Palmer wished to testify,

and we know the legal theory toward which his testimony

would have been directed (self-defense), but we know nothing
-19-

about the facts to which Palmer would have testified. 

Palmer’s stated desire to tell his side of the story and his

conclusory invocation of the words “self-defense” are not

sufficient to show “that the decision reached would reasonably

likely have been different absent the errors.” Strickland, 466

U.S. at 696. We have repeatedly emphasized that “bald

assertions and conclusory allegations do not afford a sufficient

ground for an evidentiary hearing” on a habeas petition.

Campbell, 515 F.3d at 184 (citation omitted); Zettlemoyer v.

Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991). Other circuits

have likewise recognized that a habeas petitioner’s nonspecific

or conclusory allegations of ineffective assistance of counsel do

not compel district courts to convene evidentiary hearings in

order to delve into the unelaborated factual basis of a habeas

petition. See, e.g., Anderson, 425 F.3d at 858-59; Barry v.

United States, 528 F.2d 1094, 1102 (7th Cir. 1976). Palmer’s

petition contains no factual matter regarding Strickland’s

prejudice prong, and his reference to the legal theory of selfdefense is precisely the sort of unadorned legal conclusion that,

without supporting factual allegations, we have consistently

found insufficient to warrant an evidentiary hearing. See

Campbell, 515 F.3d at 184; Zettlemoyer, 923 F.2d at 298 n.12;

cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (in

the civil pleading context, “courts are not bound to accept as

true a legal conclusion couched as a factual allegation”)

(quotations and citations omitted). 

Zettlemoyer is on point. In that case, the petitioner

contended that an evidentiary hearing was necessary to develop

the facts of his ineffective assistance claim, in which he asserted

that his attorney had failed to call witnesses who would have
 Palmer, as the very witness whose testimony was not 5

presented at trial, would certainly have been capable of

outlining in his habeas petition the contours of the testimony he

would have given. This is not, in other words, a case in which

an evidentiary hearing was needed in order to unearth facts

unknown to the petitioner. 

-20-

provided unspecified testimony related to his diminishedcapacity defense. See Zettlemoyer, 923 F.2d at 298. As in this

case, the petitioner in Zettlemoyer identified a witness whose

testimony his attorney failed to present and a legal theory

toward which the witness’s testimony would have been

directed, but the petitioner gave no indication of what the

contents of the testimony would have been. See id. We

explained that the petitioner had failed to “set forth facts to

support his contention” and held that an evidentiary hearing was

not called for. Id. at 298, 300-01; see also Campbell, 515 F.3d

at 184 (where petitioner fails “to allege what this witness would

have been able to say that would have been of help to him,” an

evidentiary hearing is not mandated); Wells, 941 F.2d at 259-

60. The same conclusion is compelled here. By stating merely

that he would have “taken the stand to testify on [his] own

behalf to explain [his] side of what really happened,” (App.

87b), and that this testimony would have addressed the subject

of self-defense, Palmer failed to present “factual allegations,

which, if true, would entitle the applicant to federal habeas

relief” under Strickland’s prejudice prong. Schriro, 550 U.S. 5

at 474. 

In Owens v. United States, 483 F.3d 48, 59 (1st Cir.
-21-

2007), the court recognized that “an attorney’sfailure to inform

his client of his right to testify could be prejudicial.” The court

explained that a “defendant’s testimony could be crucial in any

trial, and it could be difficult for us to determine whether or not

a jury would have found his testimony credible.” Id. (citations

omitted). This is particularly true when the only witness the

defendant proffers is himself. The Supreme Court has

recognized that “the most important witness for the defense in

many criminal cases is the defendant himself.” Rock v.

Arkansas, 483 U.S. 44, 52 (1987). After all, if there were no

other witnesses, who would be in a better position to advise the

factfinder as to the relevant facts in support of a claimed

defense?

On the other hand, the mere assertion of self-defense is

not sufficient to raise a plausible showing of prejudice

sufficient to warrant an evidentiary hearing. If so, every

defendant charged with homicide would make such an

assertion. In Owens, the court particularized the needed

showing when it stated that a defendant who was not informed

by counsel or the court of his right to testify and who “would

have offered genuinely exculpatory testimony” would have

been prejudiced by the failure to have been informed of his

right to testify. Owens, 483 F.3d at 59 (emphasis added).

Although the showing that a defendant must make need not be

onerous, it must be sufficiently detailed to be “genuinely

exculpatory.” Id.

In New Jersey, the assertion of self-defense “requires a

jury (1) to discern whether the defendant had a subjective belief

at the time that deadly force was necessary and then (2) to

determine whether that subjective belief was objectively
-22-

reasonable.” State v. Jenewicz, 940 A.2d 269, 274-75 (N.J.

2008); see N.J. Stat. Ann. 2C:3-4. There are several further

caveatsto thisrule,such as a duty to retreat. See N.J. Stat. Ann.

2C:3-4(b). In this case, it is “undisputed that defendant was the

only person who drew and fired a gun.” (App. 35.) In order to

have been entitled to an evidentiary hearing, Palmer had the

obligation to show his testimony would have been genuinely

exculpatory as long as it was not refuted by the existing record.

See Schriro, 550 U.S. at 474. Palmer did not make any such

showing, and it follows that the Court did not err in denying

Palmer a hearing.

3. There Is No Presumption of Prejudice in Right-to-Testify

Cases

Conceding that “the record is silent about the nature of

Palmer’s probable testimony,” (Appellant’s Br. 22), Palmer

contends that he should be relieved from making any showing

as to Strickland’s prejudice criterion. Although his argument

on this point is somewhat muddled, Palmer appears to suggest

that when counsel fails to properly advise a client concerning

the right to testify, such defective performance by counsel is not

susceptible to analysis under Strickland’s two-prong standard,

but is instead a “structural defect” in the entire trial process that

requires automatic reversal, irrespective of prejudice. See

Neder v. United States, 527 U.S. 1, 7 (1999); see also, e.g.,

United States v. Gonzalez-Lopez, 548 U.S. 140, 148-49 (2006);

Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); Arizona v.

Fulminante, 499 U.S. 279, 309-10 (1991). Because, under this

theory, Palmer was not required to make any showing of

prejudice in order to prevail on his claim, Palmer insiststhat the

District Court’s failure to hold an evidentiary hearing on his
 Of course, in the collateral review context, even trial- 6

type errors are not examined under the harmless-beyond-areasonable-doubt standard employed on direct review, but are

instead reviewed under Brecht’s more deferential standard. See

Brecht, 507 U.S. at 623 (the question is whether the error had

a “substantial and injurious effect or influence in determining

the jury’s verdict”). Structural defects are per se reversible even

in habeas cases. See id. at 629-30.

-23-

petition was an abuse of discretion. We disagree. 

As an initial matter, Palmer is certainly correct to note

that “[t]he Supreme Court has distinguished between two types

of constitutional error that occur at both trial and sentencing:

‘trial errors,’ which are subject to constitutional harmless error

analysis, and ‘structural defects,’ which require automatic

reversal or vacatur.” United States v. Stevens, 223 F.3d 239,

244 (3d Cir. 2000) (citing cases); see also United States v.

Vazquez, 271 F.3d 93, 103 (3d Cir. 2001). Certain types of

constitutional error are considered structural, and subject to

automatic reversal, not only because they have the potential to

“infect the entire trial process,” Brecht, 507 U.S. at 630, but

because of “the difficulty of assessing the effect of the error[s].”

Gonzalez-Lopez, 548 U.S. at 148-49 & n.4 (citing cases). That

is, whereas an error of the trial type occurs “during the

presentation of the case to the jury” and “may therefore be

quantitatively assessed in the context of other evidence

presented in order to determine whether its admission was

harmless beyond a reasonable doubt,” Fulminante, 499 U.S. at 6

307-08, the effects of a structural defect “are frequently
 In Campbell v. Vaughn, we declined to take a position 7

on this issue, as our threshold determination that the attorney’s

performance was not deficient rendered the point moot. 209

F.3d at 281 n.1. As in Campbell, we note here that Palmer

“does not allege that the [State] deprived him of his right to

testify,” id., and we express no opinion on the effect that State

participation in the deprivation would have on our analysis. 

-24-

intangible, difficult to prove . . . [or] cannot be ascertained.”

Gonzalez-Lopez, 548 U.S. at 149 n.4 (citations omitted). The

list of errors that constitute structural defects is “very limited,”

Johnson v. United States, 520 U.S. 461, 468 (1997), and

“includes complete denial of counsel, biased judges, racial

discrimination in selection of grand jury, denial of

self-representation at trial, denial of public trial, and [a]

seriously defective reasonable doubt instruction.” Stevens, 223

F.3d at 244 (citing Neder, 527 U.S. at 7-8 (1999)). 

We are not persuaded by Palmer’s argument that his

attorney’s alleged failure to advise him of his right to testify

falls within this very limited category of errors that are per se

reversible. First, every authority we are aware of that has

addressed the matter of counsel’s failure to advise a client of the

right to testify has done so under Strickland’s two-prong

framework, which requires the petitioner to “show that [the

deficient conduct] actually had an adverse effect on the

defense.” Strickland, 466 U.S. at 693; see, e.g., Hodge v. 7

Haeberlin, 579 F.3d 627, 640 (6th Cir. 2009) (“Hodge’s

speculation that his testimony would have left a favorable

impression with the jury does not demonstrate the required
 Palmer cites Owens v. United States, 483 F.3d 48 (1st 8

Cir. 2007), contending that the First Circuit has adopted a per se

prejudice rule. We do not believe that Owens stands for the

proposition for which Palmer cites it. The case plainly

addresses the significance of prejudice in the right-to-testify

context, id. at 59-60, and endorses Brown v. Artuz, 124 F.3d at

80, a Second Circuit case that disposed of a right-to-testify claim

by holding that the petitioner’s affidavit was inadequate to

satisfy Strickland’s prejudice prong. 

-25-

prejudice under Strickland.”); Matylinsky, 577 F.3d at 1097

(“The Strickland standard is applicable when a petitioner claims

his attorney was ineffective by denying him his constitutional

right to testify.”) (citing Medley v. Runnels, 506 F.3d 857, 861

(9th Cir. 2007)); Cannon v. Mullin, 383 F.3d 1152, 1171 (10th

Cir. 2004) (same); Sayre v. Anderson, 238 F.3d 631, 635 (5th

Cir. 2001) (“Sayre’s self-serving conclusory statement that his

testimony would have resulted in an acquittal, standing alone,

falls far short of satisfying Strickland’s prejudice element.”);

Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (“[A]

criminal defendant’s claim that his trial counsel was

constitutionally ineffective because trial counsel failed to

inform him of his right to testify . . . must satisfy the two-prong

test established in Strickland . . . .”); Brown v. Artuz, 124 F.3d

73, 80 (2d Cir. 1997) (same); United States v. Teague, 953 F.2d

1525, 1534 (11th Cir. 1992) (same).

8

Moreover, Strickland itself cannot be read to carve out

a prejudice exception for right-to-testify cases. By its terms,

Strickland applies to all manner of ineffective assistance of
-26-

counsel claims. See Strickland, 466 U.S. at 684 (“[W]e granted

certiorari to consider the standards by which to judge a

contention that the Constitution requires that a criminal

judgment be overturned because of the actual ineffective

assistance of counsel.”). The Court carefully and expressly

specified only two categories of ineffective assistance claims in

which prejudice may be presumed: cases of “[a]ctual or

constructive denial of the assistance of counsel altogether” and

cases in which “counsel is burdened by an actual conflict of

interest.” Id. at 692. Needless to say, neither category is

applicable here. Apart from these two categories, Strickland

makes clear, “actual ineffectiveness claims alleging a deficiency

in attorney performance are subject to a general requirement

that the defendant affirmatively prove prejudice.” Id. at 693

(emphasis added). 

Finally, Palmer’s claim that his attorney failed to advise

him of his right to testify in his own defense is not the sort of

structural defect for which the automatic reversal rule is

reserved. “[M]ost constitutional errors” are of the trial type,

Fulminante, 499 U.S. at 306, and, as the Supreme Court

recently emphasized, the few errors that have been classified as

structural defects have been so categorized because the nature

of the right at issue is such that “the effect of the violation

cannot be ascertained” on review under traditional “harmlesserror standards.” Gonzalez-Lopez, 548 U.S. at 148, 149 n.4

(quoting Vasquez v. Hillery, 474 U.S. 254, 263 (1986)). Hence,

Gonzalez-Lopez explains, the violation of the Sixth

Amendment’s public-trial guarantee is considered a structural

defect “because ‘the benefits of a public trial are frequently

intangible, difficult to prove, or a matter of chance,’” id. at 149
-27-

n.4 (quoting Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984));

discriminatory practices in jury selection are structural “because

the effect of the violation cannot be ascertained,” id. (quoting

Vasquez, 474 U.S. at 263); and the deprivation of a defendant’s

right to counsel of his or her choosing, the consequences of

which “are necessarily unquantifiable and indeterminate,”

constitutes a structural defect, id. at 149 (quoting Sullivan v.

Louisiana, 508 U.S. 275, 282 (1993)); see also McKaskle v.

Wiggins, 465 U.S. 168, 177 n.8 (1984) (“Since the right of

self-representation is a right that when exercised usually

increases the likelihood of a trial outcome unfavorable to the

defendant, its denial is not amenable to ‘harmless error’

analysis.”). 

By contrast, a defendant’s testimony (or lack thereof)

occurs “during the presentation of the case to the jury” and

“may therefore be quantitatively assessed in the context of other

evidence presented . . . .” Fulminante, 499 U.S. at 307-08. In

other words, when a defendant states, “I would have testified to

X, Y, and Z, but my attorney would not put me on the stand,”

the significance of such testimony can be evaluated in the

context of the remainder of the evidence in order to assess the

impact of the constitutional violation; this is precisely the type

of constitutional error that is amenable to conventional review

in the context of the trial and evidence as a whole. See id.;

Gonzalez-Lopez, 548 U.S. at 150. In contrast, when a

defendant is, for example, denied the right to the attorney of his

choice, tried before a biased judge, or denied the right to

represent himself at trial, the impact of the violation defies

harmless error analysis, because any such analysis “would be a

speculative inquiry into what might have occurred in an
-28-

alternate universe.” Gonzalez-Lopez, 548 U.S. at 150. 

Of course, the defendant’s own testimony is very likely

to be highly important—as we noted above, “the most important

witness for the defense in many criminal cases is the defendant

himself,” Rock, 483 U.S. at 52. Asthe Ninth Circuit has noted,

“[a]s a general matter, it is only the most extraordinary of trials

in which a denial of the defendant’s right to testify can be said

to be harmless beyond a reasonable doubt.” Martinez v. Ylst,

951 F.2d 1153, 1157 (9th Cir. 1991). But it is precisely the fact

that the contours of the defendant’s probable testimony (as

expressed in an affidavit on collateral review) can be assessed

in the context of the evidence as a whole that distinguishes the

right-to-testify issue from structural defects, the effects of which

are inherently elusive, intangible, and not susceptible to

harmless error review. See Gonzalez-Lopez, 548 U.S. at 148,

149 n.4. In the absence of any Supreme Court authority to the

contrary, and in light of the unanimous determination by the

Courts of Appeals that have addressed the issue that

Strickland’s two-prong test applies in right-to-testify cases, we

conclude that Palmer was not excused from making a prima

facie showing of prejudice in his petition for post-conviction

relief. See Strickland, 466 U.S. at 693 (“[A]ctual

ineffectiveness claims alleging a deficiency in attorney

performance are subject to a general requirement that the

defendant affirmatively prove prejudice”). 

In sum, Palmer was required to prove prejudice in order

to prevail on his ineffective assistance claim, id., and factual

allegations of prejudice were thus an essential component to a

prima facie showing of his entitlement to habeas relief.

Because Palmer’s petition contains insufficient factual
-29-

allegations to demonstrate his entitlement to relief, we conclude

that the District Court did not abuse its discretion in declining

to convene an evidentiary hearing. See, e.g., Campbell, 515

F.3d at 184; Zettlemoyer, 923 F.2d at 300-301. 

B.

Our determination that Palmer’s petition fails to present

a prima facie showing of ineffective assistance of counsel and

our decision that the District Court did not abuse its discretion

when it declined to hold an evidentiary hearing are sufficient to

resolve the remaining question raised in this appeal—namely,

whether Palmer’s attorney rendered ineffective assistance of

counsel by failing to advise Palmer of his right to testify and by

failing to inform Palmer that the decision was Palmer’s to make.

In order to prevail on his claim that his attorney rendered

constitutionally deficient assistance, Palmer was required to

establish prejudice by “show[ing] that [the deficient conduct]

actually had an adverse effect on the defense.” Strickland, 466

U.S. at 693. Palmer’s petition is plainly insufficient to make

any such showing, and, as we have explained, his stated desire

to tell his side of the story “falls far short of satisfying

Strickland’s prejudice element.” Sayre, 238 F.3d at 635. 

We recognize that because the state courts did not decide

the prejudice issue on the merits, AEDPA’s deferential

standards do not apply to our resolution of the prejudice

question. See Wiggins v. Smith, 539 U.S. 510, 534 (2003) (“In

this case, our review is not circumscribed by a state court

conclusion with respect to prejudice, as neither of the state

courts below reached this prong of the Strickland analysis.”);

see also Appel, 250 F.3d at 210 (AEDPA deference does not
In light of our conclusion that Palmer was not 9

prejudiced by his attorney’s conduct, we do not address the

PCR courts’ factual finding that Palmer was informed of his

right to testify. See Strickland, 466 U.S. at 697 (“If it is easier

to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice, which we expect will often be so, that

course should be followed.”). 

-30-

apply to issue not adjudicated on the merits by the state courts).

Our discussion herein makes clear that Palmer’s petition is

plainly insufficient to demonstrate prejudice under de novo

review. We therefore conclude that the District Court correctly

dismissed Palmer’s petition. 

9

IV.

For the foregoing reasons, we will affirm the judgment

of the District Court.