NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 18

- 2507

_____________ TRACY JORDAN ,

Appellant

v. SUPERINTENDENT COAL TOWNSHIP SCI ; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA

_____________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civ il No

. 2:1 6

- cv - 02784 ) District Judge: Honorable Jeffrey L. Schmehl

______________ Submitted Under Third Circuit L

. A

. R

. 34.1(a)

October 19, 2020

______________ Before: GREENAWAY, JR., COWEN and FUENTES , Circuit Judges

.

(Opinion Filed: February 1 , 2021 )

______________ 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

GREENAWAY, JR., Circuit Judge

. Appellant Tracy Jordan appeals from the District Court’s denial of his Petition seeking the issuance of a Writ of Habeas Corpus based on ineffective assistance of counsel.
For the reasons that follow , we will affirm.
I. BACKGROUND
On the morning of November 15, 2004 , a man approached a check

- cashing store and put a gun to the store owner’s head

. A struggle ensued and the owner was shot. At 8:42 a.m., t he police were called to the scene , and t he store owner was pronounced dead

soon there after. At the scene, the police recovered a white plastic drawstring bag brough t by the
assailant . Fingerprint analysis yield ed discernible fingerprints that when run through the police database yielded a match

–Appellant Jordan

. Jordan lived two blocks from the scene.
Police also recovered a .40 caliber Smith & Wesson spent cartridge case. A search of Jordan’s home turned up a . 40 caliber Smith & Wesson handgun , belonging to Jordan’s
wife , a patrol officer for the Pennsylvania Housing Authority Police Department

. The handgun contained gunpowder residue in its barrel , evidencing its recent use

. A lthough Jordan’s wife needed to carry the weapon while on duty, she was not working on the day
of the crime , meaning that both she and the weapon were at home that day. Following his arrest, Jordan went to trial by jury in Pennsylvania state court. At
trial , h e testified that , on Nove mber 15, 2004, between 8:15 and 8:45 a.m. , he was cleaning the driveway behind his house with his son , Tracy Jordan, Jr. (“Tracy Jr.”)

. Trial counsel3

did not call Tracy Jr. to corroborate his father’s account of what occurred that morning

. The jury convicted Jordan of second

- degree murder, robbery, and possessing an instrument
of crime

. Following his unsuccessful direct appeal, Jordan sought relief under Pennsylvania’s
Post Conviction Relief Act (“PCRA”) , 42 Pa. C on s . Stat. § 9524 et seq. The Pennsylvania Superior Court affirmed the PCRA court’s denial of his petition, and J ordan filed a timely
pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The District Court denied the petition. Jordan appealed, and this Court granted a certificate of appealability, limited to the following issues : (1) whether trial counsel was ineffective for not calling Tracy Jr. as an alibi witness; and (2) whether trial
counsel was ineffective for not seeking an alibi instruction.
II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction pursuant to 28 U.S.C. § § 2241 and 225 4 . We have jurisdicti on under 28 U.S.C. § § 1291 and 2253

. Because the District Court did not conduct an evidentiary hearing, our review is plenary. Abdul

- Salaam v. Sec ’ y of Pa. Dep ’ t of Corr ., 895 F.3d 254, 265 (3d Cir. 2018).
III. DISCUSSION In his habeas petition, Jordan advances two ineffective assistance of counsel claims

. First, he argues that counsel was ineffective for failing to call his son as an alibi witness

. Second, he maintains that counsel was ineffective for failing to request an alibi instruction for the jury

. We will consider eac h claim in turn.4

A. Alibi Witness
Jordan contends that he is entitled to habeas relief because trial counsel was
deficient for failing to call his son , Tracy Jr., who was 18 years

- old when the shooting occurred, as a witness at trial.
Jordan attached to his PCRA petitio n an affidavit from Tracy Jr. , in which Tracy Jr.
state d that trial counsel interviewed him about the case

. Tracy Jr. claimed that he had been willing and present to testify at trial , but was ne ver called . Tracy Jr. also averred that when he asked trial counsel why he was not being called, trial counsel told him that “he didn’t
think that it was a good idea.” App. 41 3

. Along with the affidavit, Jordan’s PCRA petition included a paragraph stating that Tracy Jr. would have testified : On November 15, 2004, at approximately 8:30 a.m., I was in my bedroom. . . . At this time, my father, Tracy Jordan, Sr. woke me up and asked me to he lp him clean up the trash in the backyard. . . . He also asked me to take out the trash from our house because it was Monday and Monday was a trash removal day by the City of Philadelphia. I got dressed and I worked with my father taking out the trash and cleaning the alleyway and adjacent property until approximately 9:00 a.m. App. 389

. Tracy Jr. also spoke to the police shortly after the crime , discussing the events of the morning: Q: Can you remember approximately where you were last Monday, November 15 th , at about 8:45 a.m.? A: I was in the back of my house, because my dad had told me to sweep up back there, because there was trash and little things on the ground that he wanted me to clean up. My dad was there with me. Q: When did your dad tell you this? A: It was that morni ng. Q: Do you remember what time?5

A: I don’t know. App. 376. The PCRA c ourt found that trial counsel made a strategic decision not to call Tracy
Jr. as a witness. The basis of its decision was Tracy Jr.’s “ inability to accurately place [Jordan] in a different place than the crime scene at the time of the crime such that it was impossible for him to be the perpetrator, and [Jordan’s] testimony that he did not leave the
house until after 9:00 a.m

. ” App. 462. The Superior Court affirmed the PCRA c ourt’s decision , reasoning that Tracy Jr.’s affidavit was “ completely devoid of the substance of the testimony [he] would have given at trial.” App. 650. T he Superior Court determined that because Jordan had failed to show
that his son’s testi mony would have been helpful in his defense , trial counsel c ould not be
found to be ineffective. Additionally , the Superior Court agreed with the PCRA c ourt that Tracy Jr.’s police statement did “not place Jordan in a different place than the crime scene at the relevant time, so it could not have advanced his alibi defense.” App. 650

– 51 n.2. The District Court found that the state court determination of facts and application of
Strickland v. Washington , 466 U.S. 668 (1984) was reasonabl e
. Pursuant to 28 U.S.C. § 2254(d ) , a federal court must defer to a state court ’s decision and can grant relief only if the decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the St ate court proceeding.” T his is a “difficult to meet and highly6

deferential standard . . . which demands that state

- court decisions be given the benefit of
the doubt

. ” Cullen v. Pinholster , 563 U.S. 170, 181 (2011) ( citations and internal quotations omitt ed). Jordan argues that the state court made unreasonable findings of fact under § 2254(d)(2) by basing its opinion on the lack of testimonial substance in the affidavit and by not considering the paragraph in the PCRA petition that contained the substance of what Tracy Jr. would have testified. Jordan also argues that the state court’s conclusion that Tracy Jr. would have been unable to put Jordan at home during the time of the shooting
was based on an unreasonable reading of the police interview transcript

. Even if we found that the state court was unreasonable, Jordan would still need to show that counsel was ineffective under Strickland

. See Rolan v. Vaughn , 4 4 5 F.3d 671 (3d Cir. 2006) (“ Because we are not bound by the unreasonable factual finding that led the [state court] to determine that [the petitioner] was not prejudiced by [counsel’s] failure to investigate

. . . we can proceed with the review of whether [counsel] was ineffective in his representation

. ”).
To succeed on his claim that counsel’s assistance fell below the standard guaranteed by the Sixth Amendment, Jordan “must demonstrate (1) that counsel’s performance was deficient, in that it fell below an objective standard of reas onableness, and (2) that the petitioner suffered prejudice as a result of the deficiency.” Blystone v. Horn , 664 F.3d 397, 418 (3d Cir. 2011) (citing Strickland , 466 U.S. at 687). B ecause we find that Jordan’s7

claim fails under Strickland , we need not re solve whether the state court made an unreasonable determination of fact under § 2254(d).

a. Deficient Performance To establish that trial counsel’s performance was constitutionally deficient under the first prong of Strickland , Jordan must identi f y acts or omissions by counsel that fell
below competent assistance in light of all circumstances

. 466 U.S. at 690. The r eviewing
court must “ indulge a strong presumption that counsel ’ s conduct falls within the wide range of reasonable professional assistance, ” and conduct a “ highly deferential ” review of
counsel ’ s performance in order to reduce the “ distorting effects of hi ndsight. ” Id. at 689. Unlike decisions that are reserved to the defendant, such as the right to proceed to a jury
trial , c ounsel

—

not the defendant

— has discretion over whom to call as a witness

. Gov ’ t of
V.I. v. Weatherwax , 77 F.3d 1425 , 1434 (3d Cir. 1996)

. A petitioner can rebut this “‘weak’ presumption by showing either that the conduct was not, in fact, part of a strategy or by showing that the strategy employed was unsound. ”
Thomas v. Varner , 428 F.3d 491, 499 (3d Cir. 2005) (citation omitted). Where the record does not explicitly state counsel’s actual strategy or lack thereof, the petitioner may rebut the presumption by showing that no sound strategy posited by counsel could have supported the conduct. Id. But if the rec ord shows that counsel thorough ly investiga ted the law and facts, the presumption becomes “virtually unchallengeable.” Id. ( citations omitted). Otherwise, “ strategic choices made after less than complete investigation are8

reasonable precisely to the exten t that reasonable professional judgments support the limitations on investigation. ” Strickland , 466 U.S. at 690

– 91. Jordan attempts to rebut the presumption that counsel’s actions were strategic ally
sound by claiming that counsel had little strategy in this case except to argue that the
evidence was insufficient

. Further, Jordan argues that counsel’s witness preparation and
failure to corroborate Jordan’s own testimony undermined such strategy. These arguments
fail to sa tisfy Jordan’s burden to rebut the presumption

. We have found ineffective assistance of counsel where counsel failed to call a potential alibi witness because counsel neglected to investigate such witness. Rolan , 445 F.3d at 682

. However, in this case, the record , including Tracy Jr.’s affidavit itself, clearly shows that counsel investigated Tracy Jr. as an alibi witness, even going so far as to meet with him to prepare for potential testimony. Even more, the affidavit provided by Jordan highlights that trial counsel told Tracy Jr. that he no longer believed it was a sound strategy
to call him as a witness during trial

. Rather than giving trial counsel the full “benefit of the doubt , ” we are required to “affirmatively entertain” possible reasons co unsel may have had for not calling Tracy Jr.
as a witness. Cullen , 563 U.S. at 196

. Here, we find that trial counsel made a clear strategic
choice: trial counsel investigated the witness, prepared the witness for trial, but , during the
trial , after analy zing the trial’s progress moment by moment, decided it was no longer a good strategic choice to call Tracy Jr. or his mother, who he had ready and present if helpful9

to the case

. Jordan has not presented any evidence to sufficiently rebut the presumption
that counsel was effective

. T herefore , Jordan’s claim fails on the first Strickland prong. b. Prejudice Notwithstanding our ruling on deficient performance, even if we were to address to prejudice substantively, Appellant fails. T o satisfy the second Strickland prong and ultimately prevail on his ineffective assistance claim, Jordan must “ show that there is a reasonable probability that, but for counsel ’ s unprofessional errors, the result of the proceeding would have been different

. ” 466 U.S. at 694. To meet this threshold, we must find that t he likelihood of a different result is substantial, not merely conceivable

. Id. at 693. “ A reasonable probability is a probability sufficient to undermine confidence in the
outcome. ” Id. a t 694. Additionally, “[i]n making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.”
Id. at 695. This standard is more easily met where the verdict is “ only weakly supported by the record, ” as opposed to one with “ overwhelming record support. ” Id. at 696.
Jordan argues that had the jury been presented with Tracy Jr.’s testimony, there is a reasonable probability the jury would have determined that Jordan did not com mit the
crime. However, the evidence presented against Jordan was far from weak : a fingerprint matching Jordan’s was found on the bag left behind by the assailant , the spent cartridge at the scene of the crime was from a gun of the same caliber as the gun to which Jordan had

access , which also had gunpowder residue in the barrel, ballistics testimony described how the gunpowder and absence of lint in the barrel of Jo rdan’s wife’s gun showed that the10

weapon had been discharged at some point after its last use on the gun range months earlier, especially in light of the cleaning protocols required by her employer , and bank statements showed that Jordan was having financi al difficulties and had been unemployed for over a
year
. Further, the record does not reflect that an alibi defense was the focus of the trial

. T here is therefore no basis to find that corroborating an alibi would have changed the
outcome , especially given that Tracy Jr. , who could be seen as biased as he was the 18

- year - old son of the defendant , would have provided testimony that placed Jordan only two
blocks from the scene. Because Jordan has not m et his burden of showing that there was a substantial probability that the outcome would have been different had trial counsel called Tracy Jr., his claim for ineffective assistance on this ground fails.
B. Alibi Jury Instructions Jordan argues that trial counsel was also ineffective for failing to request an alibi
instruction. For the purpose of this appeal, we must determine whether the Superior Court unreasonably applied Strickland to this claim. We find that it did not. The Superior Court reasonably concluded that : “Jordan has not alleged, much less established, that trial counsel lacked a reasonable basis for not requesting the instruction or how he has been prejudiced by the lack of an alibi instruction.” Ap p. 654

– 55. The Superior Court noted that Jordan’s only argument was that his own testimony, standing alone, was sufficient to establish an alibi defense

.11

Further, we agree with the District Court that t he Superior C ourt reasonably applied
Strickland in denying Jordan’s claim given that counsel objected to the prosecutor’s misleading statements , the objection was sustained , and the court properly instructed the jury about burden of proof

. See 466 U.S. at 690.
Th us , Jordan’s claim that trial counsel was ineffective for failing to request an alibi
instruction fails.
IV. CONCLUSION For the foregoing reasons , we will affirm the District Court’s order denying habeas
relief.