NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 15-3240

_____________

HOWARD SCOTT ALLISON,

 Appellant 

v.

SUPERINTENDENT WAYMART SCI; 

ATTORNEY GENERAL PENNSYLVANIA; 

DISTRICT ATTORNEY RICHARD A. CONSIGLIO

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(No. 3-13-cv-00068)

District Judge: Honorable Kim R. Gibson

_____________

Submitted: April 12, 2017

Before: CHAGARES, SCIRICA and FISHER, Circuit Judges.

(Filed: August 9, 2017)

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OPINION*

____________

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

constitute binding precedent.
2

CHAGARES, Circuit Judge.

Howard Scott Allison filed a petition for habeas corpus relief pursuant to 28 

U.S.C. § 2254, arguing that the state trial court’s decision during his criminal trial to 

admit testimony of prior bad acts violated his due process rights under the Fourteenth 

Amendment of the United States Constitution. The District Court denied the petition. 

We will affirm.

I.

In 2007, the Blair County District Attorney charged Allison with three felonies 

after Allison’s niece reported to her counselor that Allison had sexually assaulted her 

nine years earlier, when she was six years old. Allison was charged with: Rape of a 

Person Less than 13 Years Old in violation of 18 Pa. C.S.A. § 3121(a)(6), Statutory 

Sexual Assault in violation of 18 Pa. Cons. Stat. § 3122.2, and Corruption of Minors in 

violation of 18 Pa. Cons. Stat. § 6301(a)(1). 

The Commonwealth filed a pretrial motion to admit the testimony of Allison’s two 

adult sisters that he molested them when they were children. Allison argued that the 

sisters’ testimony was inadmissible because Pa. R. Evid. 404 barred evidence of prior 

uncharged criminal activity, and that the only purpose of the sisters’ testimony was to 

show he acted in conformity with the alleged earlier assaults and to prejudice the jury.

The judge admitted the testimony on the basis that it fell under the common scheme or 

plan exception to the prohibition against prior bad acts evidence pursuant to Pa. R. Evid. 

404, and that it was not unduly prejudicial. The judge added that without this challenged 
3

testimony, the lack of corroboration for the niece’s claims might “very well [] lead [] a 

reasonable jury to conclude they have reasonable doubt.” App. 44. 

At trial, both sisters testified that their older brother Allison assaulted them in their 

family home in the 1980s. One sister testified that Allison, who is about seven years 

older than her, molested her beginning when she was about five years old and continued 

until she was about ten or eleven, when her parents found out. The other sister, who is 

about twelve years younger than Allison, testified that he molested her for about a year 

starting from when she was five years old. 

As a part of the jury charge, the trial judge gave the following instructions:

During the course of the trial and as one of the theories of prosecution 

giving support to the Commonwealth’s delivery of this case to you is the 

Commonwealth’s theory of common design or purpose. You’ve heard 

evidence tending to prove that the defendant was guilty of some improper 

conduct for which he is not on trial now, namely, conduct delivered against 

or toward at least two of the persons who testified against him.

App. 549. The judge also explained that the “evidence is before you for a limited 

purpose, very limited. That is, for the purpose of supporting the Commonwealth’s 

contention that the actions of the defendant directed against [his niece] was in furtherance 

of a common scheme or design of the defendant’s.” App. 550. He added, “You must not 

regard this evidence as showing that the defendant is a person of bad character or 

criminal tendencies from which you might be inclined to infer guilt.” App. 550.

The jury convicted Allison on all three counts on April 17, 2008. He was 

sentenced to twelve and a half to twenty-five years of imprisonment. On April 19, 2009, 

Allison filed a direct appeal to the Pennsylvania Superior Court, arguing, inter alia, that 
4

the sisters’ prior bad acts testimony should not have been admitted. The bulk of Allison’s 

brief regarding this argument focused on violation of Pennsylvania law, but he did 

mention the U.S. Constitution two times. First, the “Statement of Questions Involved” 

section of his brief described the prior bad acts issue as “WHETHER THE LOWER 

COURT ERRED IN DENYING THE APPELLANT’S MOTION TO SUPPRESS 

EVIDENCE OF PRIOR BAD ACTS AS WELL AS CROSS-EXAMINING 

WITNESSES IN VIOLATION OF THE UNITED STATES AND PENNSYLVANIA 

CONSTITUTIONS[.]” App. 614. Second, in the “Argument” section, Allison stated, 

“The Fourteenth Amendment of the United States and Pennsylvania Constitutions make 

it explicitly clear that: ‘no State shall make or enforce any law which shall abridge the 

privileges or immunities of citizens of the United States; nor shall any State deprive any 

person of life, liberty, or property, without due process of law, nor deny to any person 

within its jurisdiction the equal protection of the laws.’” App. 631. 

The Pennsylvania Superior Court denied Allison’s claim, concluding that the trial 

court’s admission of the sisters’ testimony as proof of a common plan or scheme was not

an abuse of discretion. Allison did not appeal to the Pennsylvania Supreme Court. 

Allison then filed a pro se application in Blair County Court of Common Pleas, 

seeking relief under Pennsylvania’s Post Conviction Relief Act, 42 Pa. Cons. Stat. § 

9541, et seq. (hereinafter “PCRA”). The PCRA application alleged, inter alia, ineffective 

assistance of counsel, but did not contain claims regarding the prior bad acts testimony. 

The petition was denied, and Allison pursued unsuccessful appeals in the Pennsylvania 

Superior Court and the Pennsylvania Supreme Court.
5

Allison filed the instant petition for habeas corpus pursuant to 28 U.S.C. § 2254 in 

the United States District Court for the Western District of Pennsylvania. The Magistrate 

Judge recommended denying the application, and the District Court adopted that 

recommendation in a judgment entered September 4, 2015. The Magistrate Judge’s 

analysis concluded that an allegation of violations of state rules of evidence does not 

constitute colorable claim for a federal due process violation.1

 Allison filed a timely 

notice of appeal and we granted a certificate of appealability based on two issues on 

appeal: 1) whether Allison’s federal due process rights were violated by the introduction 

of the ‘prior bad acts’ testimony of the two sisters and 2) whether Allison fairly presented 

his federal due process claim to the state courts. 

II.

The District Court had jurisdiction pursuant to 28 U.S.C. § 2254. We have 

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. Our review of the District Court’s 

denial of habeas corpus is plenary, but we “review findings of fact for clear error.” 

Gardner v. Grandolsky, 585 F.3d 786, 788 (3d Cir. 2009).

III.

Federal habeas claims need to have been “fairly presented” to a state court. To 

fulfill that requirement, the federal claim “it must be the substantial equivalent” of the 

claim that the state courts reviewed either on direct appeal or collateral review. Lambert 

 1 While the District Court and Magistrate Judge concluded that a number of Allison’s 

grounds for relief were procedurally defaulted, they did not conclude that the claim at 

issue in this appeal was defaulted.
6

v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997), as amended (Jan. 16, 1998). “Both the 

legal theory and the facts supporting a federal claim must have been submitted to the 

state courts.” Lesko v. Owens, 881 F.2d 44, 50 (3d Cir. 1989).2

 For example, a claim 

presented to the state court premised solely on violation of state evidentiary rules would 

not be the “substantial equivalent” of a claim of a federal constitutional violation based 

on the exact same facts. See Duncan v. Henry, 513 U.S. 364, 366 (1995).

A threshold issue is whether Allison fairly presented his federal due process claim 

based on the admission of the sisters’ testimony. The Commonwealth does not appear to 

contest Allison’s assertion that the factual predicates supporting his state claim and his 

federal claim are the same. Therefore, we only examine whether Allison has 

demonstrated that he “fairly presented” the legal theory of a federal constitutional 

violation when his direct appeal contained references to the “UNITED STATES . . . 

CONSTITUTION[]” and “[t]he Fourteenth Amendment of the United States . . . 

Constitution[],” and quoted the language of the amendment. App. 614, 631. 

 2 Although Allison concedes that he did not raise these claims in his PCRA petition, he is 

deemed to have met the exhaustion requirement if he had properly raised the issue on 

direct appeal. Lambert, 134 F.3d at 513 (“A petitioner who has raised an issue on direct 

appeal, however, is not required to raise it again in a state post-conviction proceeding.”); 

Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). Moreover, that Allison did not 

appeal the intermediate court’s rejection of his direct appeal does not bar him from 

seeking relief now because the Pennsylvania Supreme Court has deemed that a state 

prisoner need not petition the Pennsylvania Supreme Court in order to exhaust his state 

court remedies. Lambert v. Blackwell, 387 F.3d 210, 233–34 (3d Cir. 2004)

(“Consequently, petitioners need not seek review from the Pennsylvania Supreme Court 

in order to give the Pennsylvania courts a ‘full opportunity to resolve any constitutional 

claims.’”).
7

“If a habeas petitioner wishes to claim that an evidentiary ruling at a state court 

trial denied him the due process of law guaranteed by the Fourteenth Amendment, he 

must say so, not only in federal court, but in state court.” Duncan, 513 U.S. at 366. In 

Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001), this Court explored what it means to 

“say so.” We examined whether the petitioner put the state court on notice that his 

challenges regarding the admission of evidence — including uncharged prior bad acts 

evidence — implicated federal law. We concluded that the petitioner did not “say so” 

merely by dint of “passing references to the concept of a ‘fair trial’ in his state court 

papers,” and as a result his federal habeas claim was procedurally defaulted. Id. at 414.

Like Allison, the petitioner in Keller devoted pages of the brief to Pennsylvania 

state cases. However, unlike Allison, the petitioner in Keller never even mentioned the 

United States Constitution. Rather, the Keller petitioner only referred to his right to a 

“fair trial.” Id. at 415. Allison, on the other hand, specifically invoked “the United States 

and Pennsylvania Constitutions” and cited the Fourteenth Amendment language 

regarding due process, and in the next sentence argued that the trial court denied his 

constitutional rights when it “deviat[ed] from applicable law and misappl[ied] the 

probative value and prejudicial effect of the prior bad acts.” App. 631. Although 

Allison’s discussion of his federal constitutional claim was short, and he did not cite any 

federal case law, he invoked the federal law when he cited the Fourteenth Amendment 

and linked the alleged the facts of his claim to it. Cf. Picard v. Connor, 404 U.S. 270, 

278 (1971) (“[W]e do not imply that respondent could have raised the [federal 

constitutional] claim only by citing ‘book and verse on the federal constitution.’ We 
8

simply hold that the substance of a federal habeas corpus claim must first be presented to 

the state courts.” (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)).

Therefore, we conclude that — although this is a close call — Allison did “afford 

the state courts a chance to correct an alleged constitutional violation before invoking 

federal jurisdiction,” Szuchon v. Lehman, 273 F.3d 299, 322 (3d Cir. 2001), when he 

directly referenced the Fourteenth Amendment and the United States Constitution in his 

pro se direct appeal.

IV.

We next turn to the merits of Allison’s petition. He argues that the sisters’ 

testimony imperiled the “fundamental fairness” of his right to a fair trial. Allison Br. 13, 

16. He adds that the jury instruction regarding the testimony exacerbated the prejudice of 

the testimony. Allison Br. 22. 

“The Antiterrorism and Effective Death Penalty Act (AEDPA) dictates the manner 

in which we conduct our review” of claims under 28 U.S.C. § 2254. Dennis v. Sec’y, Pa. 

Dep’t of Corr., 834 F.3d 263, 280 (3d Cir. 2016). The road to relief under AEDPA is not 

an accommodating one. Unlike a direct appeal, in which a reviewing court can determine 

whether a district court erred in introducing certain evidence, relief under AEPDA is only 

available to Allison if he can show one of two things: that admission of the sisters’ 

testimony was 1) “contrary to,” or 2) “involved an unreasonable application of,” “clearly 

established Federal law, as determined by the Supreme Court of the United States.” 28 

U.S.C. § 2254(d)(1); see also White v. Woodall, 134 S. Ct. 1697, 1702 (2014). 
9

Clearly established law is defined as “holdings, as opposed to the dicta of this 

[Supreme] Court’s decisions.” White, 134 S. Ct. at 1702 (quoting Howes v. Fields, 132 

S. Ct. 1181, 1187 (2012)). The admission of the testimony would be “contrary” to 

clearly established law if it applies “‘a rule that contradicts the governing law set forth’ 

by the Supreme Court or is inconsistent with a Supreme Court decision in a case 

involving ‘materially indistinguishable’ facts.” Bronshtein v. Horn, 404 F.3d 700, 723 

(3d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The 

admission would be an “unreasonable application” if “it is so obvious that a clearly 

established rule applies to [this] given set of facts that there could be no ‘fairminded 

disagreement’ on the question.” White, 134 S. Ct. at 1706. In other words, “[h]abeas 

relief may not be granted on the basis that the state court applied clearly established law 

incorrectly; rather, the inquiry is ‘whether the state court’s application of clearly 

established federal law was objectively unreasonable.’” Dennis, 834 F.3d at 281 (quoting 

Williams, 529 U.S. at 409). Moreover, whether a rule is unreasonably applied 

“corresponds to the specificity of the rule itself: ‘[t]he more general the rule, the more 

leeway courts have in reaching outcomes in case-by-case determinations.’” Id. (quoting 

Harrington v. Richter, 562 U.S. 86, 102 (2011)). 

A.

The parties agree that the question of whether the trial court misapplied the 

Pennsylvania Rules of Evidence is not dispositive. Rather, the question is whether the 

admission of the sisters’ testimony “in the context of the entire trial, w[as] sufficiently 
10

prejudicial to violate [his] due process rights,” Donnelly v. DeChristoforo, 416 U.S. 637, 

639 (1974). 

At the crux of Allison’s case is his contention that the admission of prior bad acts 

evidence was “an error so egregious that the jury was unable to fairly weigh evidence” 

against him. Reply Br. 8. Allison, however, cannot identify clearly established Supreme 

Court precedent that such evidence constitutes a violation of due process. See Estelle v. 

McGuire, 502 U.S. 62, 75 n.5 (1991) (“We express no opinion on whether a state law 

would violate the Due Process Clause if it permitted the use of ‘prior crimes’ evidence to 

show propensity to commit a charged crime.”). 

Moreover, the Federal Rules of Evidence expressly allows such testimony in sex 

crime cases. In fact, Federal Rules of Evidence 413 and 414 provide that when a criminal 

defendant is accused of child molestation or sexual assault, “the court may admit 

evidence that the defendant committed any other child molestation” or sexual assault, and 

“[t]he evidence may be considered on any matter to which it is relevant.” Fed. R. Evid. 

413, 414. No Court of Appeals which has considered the constitutionality of Fed. R. 

Evid. 413 or 414 has concluded that they violated due process, see United States v. 

Schaffer, 851 F.3d 166, 177 n.56 (2d Cir. 2017) (collecting cases across Courts of 

Appeal, all of which have held that Rule 413 or 414 do not violate the Due Process 

Clause), and the Supreme Court has not deemed either rule unconstitutional. Thus, 

Allison cannot successfully claim that admitting the prior bad acts evidence as propensity 

evidence is in itself “contrary to” or an improper application of clearly established federal 

law.
11

Allison argues that overly prejudicial testimony in violation of Rule 403 — which 

serves as “a limitation on the admissibility of character evidence” — can also amount to a 

violation of due process.3

 Nevertheless, Allison cannot overcome his burden of 

identifying facially contradictory Supreme Court precedent, or precedent that obviously 

forbids the admission of the sisters’ testimony.

Allison cites to Dowling v. United States, 493 U.S. 342, 352 (1990) to argue that 

some evidence can be so prejudicial that it violates the “fundamental conceptions of 

fairness.” We agree that this general rule regarding prejudicial evidence and fundamental 

fairness exists. We next turn to whether the trial court’s decision to admit the sisters’ 

testimony was an “objectively unreasonable” application of this general rule. Williams, 

529 U.S. at 409. We conclude that it was not.

In Dowling, evidence that the defendant had donned a mask and used a gun to rob 

a home was admitted to show that he wore a similar mask and used a similar gun to rob a 

bank two weeks later. In assessing Dowling’s claim, the Supreme Court evaluated 

whether the admission of a prior bad act was substantively more prejudicial than 

probative. There, the Court noted that it “ha[s] defined the category of infractions that 

violate ‘fundamental fairness’ very narrowly” and upheld the trial court’s decision to 

admit the evidence of the prior robbery because it was “at least circumstantially valuable 

 3 There is a slight difference between the Pennsylvania Rules of Evidence 403, which 

provides that “[t]he court may exclude relevant evidence if its probative value is 

outweighed by a danger of one or more of the following: unfair prejudice, confusing the 

issues, misleading the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence,” and Federal Rule of Evidence 403, which provides that relevant 

evidence may be excluded if it is substantially outweighed. 
12

in proving petitioner’s guilt.” Dowling, 493 U.S. at 353. The Dowling Court did not

evaluate the specific probative and prejudicial elements of the equation, and thus did not 

set a rule directly applicable to the facts of Allison’s case. 

To the extent that Dowling evokes the general principle that evidence or 

statements at trial could be so “prejudicial to violate [the defendant’s] due process

rights,” Donnelly, 416 U.S. at 639, Allison also has not demonstrated how such a general 

rule could yield the conclusion that the trial court’s balancing of the probativeness of the 

testimony and its potential prejudice was “objectively unreasonable” based on Supreme 

Court precedent, Williams, 529 U.S. at 409, especially given how “narrow” the category 

of potential fundamental fairness infractions are, Dowling, 492 U.S. at 353.4 

 4 The state trial court’s decision remarked on the reasons that the sisters’ testimony in this 

case is probative, identifying what it characterized as important similarities between the 

three rapes. App. 44-47. Allison’s argument that the lack of other corroborating 

evidence made the sisters’ testimony even more prejudicial, Allison Br. 26, gets the logic 

backwards. The lack of other evidence makes their testimony more probative because its 

value in the case is higher. The lack of other evidence does not make any particular piece 

of evidence more inflammatory. 

The state trial court also concluded that while the “admission of this prior bad acts 

evidence will be prejudicial . . . it is not unduly prejudicial.” App. 48. Allison obviously 

disagrees, but fails to elicit a constitutional rule to the contrary. While the testimony was

indeed of an extremely disturbing nature, so, too, were the allegations directly before the 

jury. The record does not show how the conduct described by the sisters was any more

inflammatory than the conduct Allison was accused of at trial. See Schaffer, 851 F.3d 

166, 183 (holding that video footage of the defendant assaulting young girls was not 

more inflammatory than the allegations at issue—involving him assaulting a young girl in 

a similar manner); see also United States v. Gougis, 432 F.3d 735, 743 (7th Cir. 2005) 

(holding that evidence of the defendant’s prior theft “was indeed prejudicial to Brown’s 

defense, but the vast majority of the government’s evidence against a defendant is 

prejudicial to him. That’s the idea.” (internal citations, quotation marks, and alterations 

omitted)). In the absence of contrary Supreme Court precedent that would yield the trial 

court’s conclusions objectively unreasonable, Allison cannot prevail.
13

Allison cites several other cases that are inapposite to his case. For example, in 

Chambers v. Mississippi, 410 U.S. 284, 300-04 (1973), the issue was whether the trial 

court’s exclusion of certain testimony based on hearsay and adverse witness grounds 

deprived the defendant of his Sixth Amendment Confrontation Clause rights. That rule 

of constitutional law has nothing to do with Allison’s case. Similarly, the Supreme 

Court’s holding in Huddleston v. United States, 485 U.S. 681, 688-69 (1988), was not on 

the question of whether admission of prior bad acts was unduly prejudicial and violated a 

defendant’s constitutional rights. Rather, the Court held that a district court does not 

need to make a preliminary finding regarding the proof behind a prior bad act pursuant to 

Fed. R. Evid. 104. Id. In Michelson v. United States, 335 U.S. 469 (1948), although the 

Court discussed the merits of common law rules excluding propensity evidence, it never 

stated that admission thereof amounts to a constitutional violation. Indeed, the central 

issue in Michelson was not whether prior bad acts evidence when admitted as propensity 

evidence would be a constitutional violation, but rather the propriety of reputational 

character evidence. In any event, the Court affirmed the conviction despite 

acknowledging shortcomings in the character evidence admission scheme that courts use. 

In Estelle, in which a father was found guilty of killing his infant child, the Court upheld 

admission of evidence that the child’s prior injuries were a result of earlier abuse, noting 

that such evidence is probative and “demonstrated [her] death was the result of an 

intentional act by someone, and not an accident.” 502 U.S. at 69. It is not “so obvious” 

that these precedents apply to Allison’s case, and declining to apply them here was not 

“objectively unreasonable.” White, 134 S. Ct. at 1702.
14

Because the admission of the sisters’ testimony was neither contrary to nor 

involved an unreasonable application of clearly established Supreme Court precedent, the 

District Court’s denial of Allison’s petition on this basis was proper.

5

 

2.

Allison also argues that jury instructions prejudiced his constitutional rights, 

specifically taking issue with the trial court’s language “You’ve heard some evidence 

tending to prove that the defendant was guilty of some improper conduct for which he is 

not on trial now . . . [namely] conduct delivered against or toward at least two of the 

persons” who testified against him. App. 549. Allison argues that this suggested he was 

guilty of the acts the sisters described (and possibly more) and “reinforced and 

underscored the prior bad acts testimony.” Allison Br. 24. 

To the extent that Allison asserts that the instruction “tending to prove that the 

defendant was guilty” usurps the jury’s role in determining whether Allison did in fact 

molest his sisters, or that it suggests Allison had assaulted additional children, that 

standalone argument is foreclosed for failure to exhaust state remedies. Nowhere in 

 5 Allison cites to three of our decisions: Bronshtein, 404 F.3d 700, Lesko, 881 F.2d 44, 

and Government of the Virgin Islands v. Pinney, 967 F.2d 912 (3d Cir. 1992). These 

decisions are not dispositive because AEDPA does not allow a petitioner to rest on circuit 

precedent. Moreover, only the Pinney decision bears resemblance to Allison’s specific 

substantive position in this case. Nevertheless, it is also unhelpful to Allison because the 

Court — reviewing a conviction on direct appeal — merely held that the admission of 

testimony regarding a prior sexual assault was improper “common plan or scheme” 

evidence under the Federal Rules of Evidence. It did not reach the issue of whether such 

evidence would violate the defendant’s due process rights under the Constitution. 

Allison also cites to a number of cases involving the First Amendment, Reply Br. 5, 

which are even less relevant.
15

Allison’s direct appeal (or, indeed, his federal habeas petition) is there any reference to 

either the factual predicates or the legal theory associated with such an argument.

Allison might also be arguing that the jury instruction is not only defective for the 

above reason alone, but also that it “further prejudice[ed]” him by emphasizing the bad 

act and therefore aggravated the prejudicial nature of the testimony. Allison Br. 24. This 

argument is unpersuasive because the language of the instruction does not aggravate any 

prejudicial aspect of the testimony. It does not even refer to the details of the testimony. 

The instruction only noted that the testimony existed and that the jury ought to use it for a 

limited purpose. Because Allison has not demonstrated a violation of or unreasonable 

application of clearly established law with respect to the jury instructions, his petition 

fails on that basis as well.

V.

For the reasons stated above, we will affirm the judgment of the District Court.