NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-2364

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CORNELL DELVALLE, 

 Appellant

 

v.

SUPERINTENDENT FRACKVILLE SCI; PA STATE ATTORNEY GENERAL;

NORTHUMBERLAND COUNTY DISTRICT ATTORNEY OFFICE

_

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D. C. Civil Action No. 3-15-cv-00521) 

District Judge: Honorable Richard P. Conaboy

________________

Submitted under Third Circuit LAR 34.1(a)

on May 1, 2019 

Before: RESTREPO, ROTH and FISHER, Circuit Judges

(Opinion filed: February 21, 2020) 

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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

ROTH, Circuit Judge

Cornell Delvalle appeals from the District Court’s order denying his petition for a 

writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, we will 

affirm the judgment of the District Court. 

I.

In 2007, Delvalle, an inmate currently confined at the State Correctional 

Institution, Frackville, was the target of a drug-trafficking investigation in 

Northumberland County, Pennsylvania. State police enlisted Delvalle’s landlord, Robert 

Santore, as a confidential informant to purchase crack cocaine from Delvalle in a series 

of controlled buys. As a result of this sting operation, Delvalle was charged with eight 

counts of delivery of crack cocaine. 

Following a mistrial, three counts were withdrawn, and the government filed a 

motion in limine to preclude Delvalle from presenting at the retrial evidence from two of 

the three withdrawn counts. Delvalle opposed the motion on the grounds that the two 

withdrawn counts established that Santore was framing him. For one count, Delvalle had 

an alibi; for the other, video evidence showed Santore retrieving cocaine from his own
3

garage with no sign that Delvalle was present. The court granted the government’s

motion and excluded evidence of the two withdrawn counts.

1

 

At the jury trial, the government presented Santore’s testimony,2 as well as the 

testimony of four law enforcement officials involved in the investigation, and the 

manager of the McDonald’s where one of the controlled purchases purportedly occurred. 

Santore was the only witness who could provide direct testimony about the transactions. 

He was the only person to observe the drug exchanges, including the McDonald’s 

controlled buy. There was no audio or video recording of any exchange and no forensic 

evidence linking Delvalle to the drugs found on Santore. However, other witnesses, 

specifically the law enforcement officials, provided evidence to show that Delvalle sold 

cocaine to Santore. Officer Brennan testified that he strip-searched Santore and searched 

his car before each controlled buy, witnessed Santore call Delvalle to request cocaine and 

establish meeting places for the transaction, and saw Delvalle at the transactions. 

Delvalle’s counsel cross-examined the witnesses. His defense theory was that 

Santore had a different source for the crack cocaine and was framing Delvalle in return 

for preferential treatment from the government on his own drug charges. The jury was 

1 The government argued to the Superior Court on direct appeal that the two withdrawn 

counts would have misled the jury or caused undue delay, and each would have required 

a “mini-trial[].” App. 63. The government now notes that there is little evidence 

available regarding the count for which Delvalle claims he had an alibi. In the other 

excluded count, Santore had testified at the first trial that the police watched him order 

cocaine and strip-searched him and his car and that Delvalle changed the drug delivery 

location to Santore’s garage. 

2 At trial, Santore confirmed that he was testifying pursuant to a plea agreement with the 

government. 
4

not convinced. Delvalle was convicted of all five counts of delivery of crack cocaine, as 

well as four counts of criminal use of a communication facility and two counts of 

criminal conspiracy to deliver crack cocaine. He was sentenced to seventeen-and-a-half 

to forty-one years’ imprisonment. 

Delvalle appealed to the Superior Court of Pennsylvania, claiming he was denied 

his due process right to present a defense and confront his accuser when the trial court 

precluded evidence related to the withdrawn counts. Delvalle’s conviction was affirmed. 

The Superior Court noted that the evidence was indeed probative of Santore’s credibility 

and the trial court had previously ruled that it would not confuse or distract from the issue 

at trial. Thus, excluding it was error. Nevertheless, the Superior Court found that error to 

be harmless. It acknowledged the following: (1) There was no direct video or audio 

evidence of any exchange between Delvalle and Santore, even though a camera had been 

present at each controlled buy; (2) there was no fingerprint evidence linking Delvalle to 

the crack cocaine found on Santore after each controlled buy; (3) there were 

discrepancies between Santore’s testimony and phone records; (4) none of the prerecorded buy money that had allegedly been given to Delvalle by Santore had been found 

in Delvalle’s possession; and (5) Santore had a motive to lie because he would likely 

receive a favorable sentence in his own pending narcotics charges in exchange for his 

testimony against Delvalle. Delvalle, according to the court, had been able to present a 

strong circumstantial case that Santore had framed him and the excluded evidence would 

not have fundamentally changed how the jury viewed the case. 
5

Delvalle filed a petition for allowance of appeal, which the Supreme Court of 

Pennsylvania denied. He then filed a petition for a writ of habeas corpus in the United 

States District Court for the Middle District of Pennsylvania. The District Court denied

habeas relief and declined to grant a certificate of appealability. Delvalle filed a notice of 

appeal, which this Court construed as an application for a certificate of appealability 

under 28 U.S.C § 2253(c)(1). We granted the application.

II.3

Delvalle contends he was denied his due process right to present a defense and 

confront his accuser when the trial court precluded evidence that Santore provided false 

information with respect to the withdrawn charges. This argument is unpersuasive. 

The Superior Court held that the trial court erred but found that its error was 

harmless; so, we assume, without deciding, that a constitutional error occurred at 

Delvalle’s trial.4 We assess harmlessness determinations using the analysis set forth in 

3 The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254 over Delvalle’s 

habeas corpus petition. We have appellate jurisdiction under 28 U.S.C. §§ 1291 and 

2253. Because the District Court based its decision on a review of the state-court record 

and did not conduct an evidentiary hearing, our review of its order is plenary and we 

apply the same standard the District Court applied. Branch v. Sweeney, 758 F.3d 226, 

232 (3d Cir. 2014); Jacobs v. Horn, 395 F.3d 92, 99 (3d Cir. 2005). We review the “last 

related state-court decision” of the state court, which here is the Superior Court’s 

decision. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

4 See Davis v. Ayala, 135 S. Ct. 2187, 2193 (2015). 
6

Brecht v. Abrahamson.

5

 Under that standard, Delvalle must establish that the error “had 

substantial and injurious effect or influence in determining the jury’s verdict.”6 The 

Supreme Court has recently confirmed that the Brecht standard governs our harmless 

error analysis on collateral review. However, where, as here, the state court concluded 

that the error was harmless beyond a reasonable doubt on direct review,7 we must defer 

to its determination under the framework established by the Anti-Terrorism and Effective 

Death Penalty Act of 1996 (AEDPA).8 AEDPA provides that, when a state court rejects 

a petitioner’s claim on the merits, a federal court may not grant the writ unless the state 

court’s decision (1) “was contrary to, or involved an unreasonable application of, clearly 

established [f]ederal law, as determined by the Supreme Court of the United States,” or 

(2) “was based on an unreasonable determination of the facts in light of the evidence 

presented in the [s]tate court proceeding.”9 Thus, we may not award habeas relief unless 

5 Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The District Court denied Delvalle’s 

claim based on the standard set forth in Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), 

and found that the trial court’s evidentiary ruling “did not infuse the trial with unfairness 

as to deny due process.” App. 12. Although the District Court erred in failing to analyze 

the Superior Court’s harmlessness determination under Brecht and its progeny, this error 

was harmless, and both parties’ appellate briefs correctly analyzed Delvalle’s claims 

under Brecht. See TD Bank N.A. v. Hill, 928 F.3d 259, 270 (3d Cir. 2019) (“We may 

affirm on any basis supported by the record, even if it departs from the District Court’s 

rationale.”).

6 Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). 7 See Chapman v. California, 386 U.S. 18, 24 (1967). 8 Davis, 135 S. Ct. at 2198 (holding that a Chapman determination is adjudication on the 

merits and thus subject to AEDPA). 

9 28 U.S.C. § 2254(d); Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848 (3d 

Cir. 2017). The term “clearly established” refers to the holdings, as opposed to the dicta, 

of the Supreme Court's decisions at the time of the relevant state-court decision. 

McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir. 2009).
7

the harmlessness determination itself “was so lacking in justification that there was an 

error well understood and comprehended in existing law beyond any possibility for 

fairminded disagreement.”10 Put another way, we ask “whether a fair-minded jurist could 

agree with the Superior Court’s conclusion” that the error was harmless, and if she could, 

then Delvalle “necessarily”11 cannot show that the trial error “had substantial and 

injurious effect or influence in determining the jury’s verdict” under Brecht.

12 

This is a difficult standard to meet—a “highly deferential standard for evaluating 

state-court rulings, which demands that state-court decisions be given the benefit of the 

doubt.”13 Delvalle cannot meet it here. In order to assess harmlessness, we must 

consider the excluded evidence against the backdrop of the evidence presented at trial, in 

light of the so-called Van Arsdall factors.14 In Van Arsdall, the Supreme Court described 

five factors to guide Confrontation Clause errors stemming from a trial court’s limitation 

on cross-examination, but we focus on just three of them, which we find are dispositive 

in holding that a fair-minded jurist could agree that the trial court’s error was harmless. 

These three factors are (1) the overall strength of the prosecution’s case, (2) whether the 

10 Harrington v. Richter, 562 U.S. 86, 103 (2011); Davis, 135 S. Ct. at 2199. 

11 Johnson v. Lamas, 850 F.3d 119, 132-34 (3d Cir. 2017). 

12 Brecht, 507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 775).

13 Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Woodford v. Visciotti, 537 

U.S. 19, 24 (2002)). 14 Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); see Littlejohn v. Trammell, 704 

F.3d 817, 844-45 (10th Cir. 2013) (analyzing harmlessness under Brecht using the Van 

Arsdall factors).
8

excluded testimony was cumulative, and (3) the extent of cross-examination otherwise 

permitted.15 

With respect to the first factor, the evidence presented at trial, while 

circumstantial, clearly pointed to Delvalle as the provider of cocaine, even discounting 

Santore’s testimony entirely. For example, with respect to the December 3 controlled 

buy, Officer Brennan testified that he watched Santore call Delvalle and arrange to meet 

at a nearby McDonald’s, strip-searched Santore and his car, gave him $300 in 

photocopied currency, followed Santore to the McDonald’s, saw Delvalle and his 

codefendant arrive and leave two minutes later, followed Santore back to the police 

department, and strip-searched Santore and his car again. Sergeant Witmer observed the 

transaction from his cargo van and testified that Santore gave money to Delvalle as 

Delvalle gave him a McDonald’s cup. At the station, Santore handed over the

McDonald’s cup, which contained a white substance that was later confirmed to be 

cocaine. The other controlled buys were conducted in a similar fashion. In some of 

them, Officer Brennan was able to observe Delvalle speak with Santore, and sometimes 

not; sometimes, Santore called Delvalle in the presence of police, and sometimes not; but 

in every controlled buy the evidence clearly indicated that Delvalle and his codefendant 

were the source of the cocaine. Officer Wynn testified that it was not unusual for officers 

15 See Van Arsdall, 475 U.S. at 684. The other two factors are “the importance of the 

witness’ testimony in the prosecution’s case, . . . [and] the presence or absence of 

evidence corroborating or contradicting the testimony of the witness on material points . . 

..” Id. Neither of these factors weighs against harmlessness to the extent that the result 

of our analysis would be different. 
9

to be present and yet not witness the actual “hand-to-hand” transaction, because such 

transactions occurred quickly.16 

Second, the excluded evidence undermined the prosecution’s case in a manner 

similar to the manner in which Delvalle’s counsel undermined the prosecution’s case via

cross-examination. As described above, Delvalle was able to elicit testimony that called 

into question Santore’s reliability, including the lack of video evidence and discrepancies 

in the phone records. The excluded evidence would similarly have cast doubt on 

Santore’s reliability. Given that the jury did not accept Delvalle’s theory that Santore 

framed him, the excluded evidence would have been cumulative. 

Finally, Delvalle concedes that he was able to cross-examine Santore and the other 

officers extensively at trial. Indeed, that is how he presented his theory that Santore had 

framed him. This factor thus weighs in favor of finding harmless error. 

In sum, a fair-minded jurist could agree with the Superior Court’s judgment that 

the trial court’s error was harmless. Delvalle therefore cannot show that the exclusion of 

the two withdrawn charges “had substantial and injurious effect or influence in 

determining the jury’s verdict.”17 While we might have reached a different result with 

respect to harmlessness if we were reviewing Delvalle’s claim de novo, under AEDPA, 

that is not our role. We will therefore affirm the denial of the habeas petition. 

16 App. 351.

17 Brecht, 507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 776).