2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
5-12-2004 

# F r ede r ick v . K y le r P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-1313

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w . v i l l a no va . e du/thir dc ir c uit_2004/713NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

____________ No. 03-1313

____________ EDWARD LEE FREDE RIC K, Appellant
v. KENNETH D. KYLE R, SUPE RIN TENDENT

____________________ ON APPEAL FROM THE UNI TED STATES DIST RICT COURT FO R T HE WE STE RN DIST RIC T O F PE NN SY LV AN IA

(Di st . Cou rt

No. 0 0-c v-0 0378E) Distric t Cou rt Judg e: Ho n. Sea n J. M cLa ugh lin

Argued: January 13, 2004 Be for e: A LIT O, C HE RT OF F, an d B EC KE R, Circuit Judges (Opinion Fi led: May 12, 2004)

SHELLEY ST ARK Federal Publ ic Defender 1111 R enaissance Centre 1001 State St

reet Erie, PA 16501 THO MA S W. PATT ON (argued) Asst. Fede ral Publ ic Defender 1111 R enaissance Centre 1001 State St

reet-2- Erie, PA 16501 Counsel for

Appellant MICH AEL D . ALFIERI, ESQ. (argued) Assist ant Dist

rict Attorney McK ean County Distri ct Attorney’ s Office McK ean County Courthouse Smethport, PA 16749 Counsel for

Appellee

______________________ OPINI ON OF THE COURT

______________________ PER CU RIA M : This is an ap peal f rom an or der d enying E dw ard L ee Fr ederic k’s pe tition fo r a w rit of habeas corpus . In hi s peti tion, Frederi ck clai med, among other t hings, that he was denied the effecti ve assi stance of counsel at

tri al becaus e his at

torneyalle gedlydenied him th e opp ortun ity to testify in his ow n def ense . We hold that the only issue that is properl y before us regar ding Frederick’s fail ure to t ake the st and at hi s tri al is the is sue wh ether h is trial cou nsel re nder ed ine ffec tive ass istance , in viola tion of the S ixth Amendment. Applyi ng the st andard of Stri ckland v. Washington , 466 U .S. 688 (198 4), we further hol d that, even if t rialcounsel was i neffecti ve, Frederick was not pr ejudic ed, and there fore Frederick’s ineffective ass ist ance clai m was properlydenied.-3- I. In Jan uary 19 83, fo llow ing a tria l by jury, Frede rick w as co nvicte d of the firstdegree murder

of his gi rlfriend, Karen Meeker, and he i s curre ntly servi ng a sentenc e of life impris onment. The evi dence at t rialshowed that Fr ederic k shot Meeker in t he abdomen with a shot gun and left her by the si de of a ruralroad where she was di scovered by a pas sing m otorist. M eeke r identif ied F rederic k as th e sho oter to a passin g m otorist, the ambulance crew, medicalpersonnel , poli ce, and fami ly members. Meeker later di ed du rin g t he co ur se of su rg er y. At Frederi ck’s trial , the Commonw ealth call ed 29 witness es, ni ne of whom had engaged in conver sati ons with Meeker bet ween the ti me when Frederick shot her and her death. In thes e conversat ions, Meeker identi fied Frede rick as the pers on who had shot her. The Commonwealth al so presented evidence c oncerning t he relations hip between Meeker and Frederi ck, evi dence placi ng Frederi ck near the scene of the murder, and evidence r elat ed to the murder weapon. Frederi ck did not t ake the st and. Under Pennsy lvania law, i f Frederi ck had testifie d, the Commonw ealth could have sought to int roduce proof of hi s prior homicide
con victi on i n re but tal. See Commonw ealth v. Bighum , 307 A .2d 25 5, 260 (Pa. S up. C t. 197 3); Commonw ealth v. Butl er , 173 A .2d 468, 47 3-74 (19 61). Som e years earlier, Fre der ick h ad p led g uilty to th e vo lun tary m ans laug hter of a for me r girlf rien d. For th is offense, Frederi ck was sentence d to 6 1⁄2 to 13 y ears of i mprisonment. At Frederi ck’s trial-4-

for the Meeker murder , his attorney t old him not to take the st and. Frederick’s counsel gave thi s advice to avoid havi ng Frederi ck’s pri or homicide conviction brought to the att en tio n o f th e ju ry. In thi s habeas pr oceeding, Frederi ck argues that his a ttorney erre d in fa iling to advise hi m that a defe ndant has t he right to tes tify

even if the defendant’ s att orney disag rees w ith that tac tic. Fred erick c onten ds tha t, if he h ad be en so advis ed, he wo uld have taken t

he stand and would ha ve testifie d that he was severel y i ntoxicated when he shot Meeker. Thi s test

imony, Frederi ck maintai ns, might have convinced t

he jurythat he
was u nable to fo rm the spe cific intent neede d for con viction of first-degre e murd er. II. Frederi ck’s habeas petit ion was refer

red to a magi strate judge for a report and
recom men dation . Bef ore tur ning to the m erits of F rederic k’s pe tition, the m agistrate judge concl uded that

Frederi ck’s fai lure t o exhaust s tate remedies s hould be excuse d due to inor dinate delay(more than ni ne years) i n Frederi ck’s Post -Convicti on Relief Act (“PCRA”), 42 Pa. C.S. §§ 9541-46, pr oceeding, which was sti ll pendi ng. In addi tion, because the Pennsy lvania stat e courts had not adj udicat ed Frederi ck’s cl aims on the merits, th e ma gistrate ju dge c onclu ded th at the re strictive sta ndar ds of review set ou t in 28 U .S.C . § 22 54( d) d id n ot ap ply, and the magis trate judge i nstead appl ied “pre- AEDPA independent

judgment. ” The magistr ate concl uded, however, that t he onlyclai m that shou ld be e ntertain ed rela ting to F rederic k’s fa ilure to te stify was the cla im tha t his-5-

attorney r endered i neffecti ve assi stance, in viol ation of the Sixt h Amendment. The magi stra te not ed t

hat th is was t

he o nl y suc h cl ai m th atwas p re se nt ed i n t he P CRA petit ion or i n Frederi ck’s habeas petit ion. Alt hough Frederi ck’s attorneyin the habeas proceedi ng atte mpted to raise a due pr ocess cl aim regar ding trial c ounsel’ s conduct, the magistr ate j udge held that “Petiti oner’s c laim re garding hi s right to tes tify

[would be] reviewed as it was presented in his PCRA petiti on and his habeas petition; t hat is, as a clai m that hi s counsel was ineffective for not allowing hi m to test

ifyat trial. ” On the merits , the magistr ate j udge held that Frederick’s right to the e ffecti ve assi stance of counsel had not

been viol ated under

the two-par

t tes t of Stri ckland v. Washington , 466 U.S. 668 (1984) . The District Court adopte d the magist rate j udge’s re port and recommendation and denied Frede rick’ s peti tion. Our Court grant ed a certific ate of appealabi lit

y “s olely with res pect t o appell ant’s clai m that counse l was ineffe ctive for failing to allow him to testify and violate d his rig ht to testif y by not adv ising h im of his righ t to te stify an d no t allo win g hi m to do s o.” Although our cer

tifi cate of appealabil ity

was not strictl y l imit ed to the questi on wh ether F rederic k w as de nied th e eff ective assistan ce of coun sel, our r eview of the claim that Frederic k asserted in the stat e PCRA proceedi ng and in his federal habeas petiti on convinces us that t

he onlyclai m that i s properl y before us is t he ineffect

ive ass ist ance of counsel cl aim. We ther efore res tri ct our di scussi on to that clai m. We do not decide whether a defendant

in Frederick’s position can obt ain habeas reli ef under anyother-6-

th eo ry. III. The Sixth Am endm ent pro vides that a c rimina l defe ndan t shall ha ve the right to “the Assi stance of

Counsel for hi s defence. ” As a general matter , a defendant alle ging a Sixth A mend ment inef fective assistance v iolation must sho w (1) that co unsel’s perfo rman ce fe ll below an ob jective s tanda rd of reaso nable ness a nd (2 ) that it is reasonabl y pr obable that, “but for c ounsel’ s unprofess ional e rrors , the resul t of the proceedi ng would have been diffe rent. ” See Stri ckland , 466 U.S . at 68 7-9 1, 69 4. In the p resen t case, it is q uestion able w hethe r Fred erick c an sh ow that his attorne y’s perfo rman ce w as de fectiv e. If Fre derick ’s attorn ey mere ly advised him n ot to te stif y , t ha t t ac ti ca l d ec is io n c er ta in ly wou ldnot

ha ve fa ll en be lo w Stri ckland ’s standard of objective rea sonablenes s. Fre derick a ssert s that , if he had testifie d, he would have explai ned to the jurythat, while he di d in fact shoot Meeker, he did so whil e he was drunk and while they were fi ghting. Both of those f acts had a lready

been establis hed by testimony fr om a bartender who served Frederick and byMeeker’s st atements to other people befor e she died. Thus, Frederick’s testimony would not have brought ne w inform ation to the jury’s atte ntion, a nd a c om peten t trial attorne y could h ave re ason ably
conc luded in any ev ent tha t a def ense of v olun tary intoxic ation w as no t likely to lead to an acquittal on t

he charge of fi rst- degree murder . Moreover, had Frederi ck taken the stand, the pros ecuti on could have sought to int roduce proof of hi s prior homicide-7-

conviction at the guil t phase of his tri al, with potenti allydisastrous consequences. Thus, advisi ng Frederi ck not to testi fy under the ci rcumstance s was not ine ffecti ve. Fred erick n ow claim s, how ever, th at his atto rney did n ot sim ply advise him n ot to testifybut led hi m to beli eve that he could not

do so. Fre derick a ssert s that his attorney di d n ot in fo rm hi m th at h e c ou ld ha ve di sre ga rd ed th e a tto rn ey’ s a dv ice . U nf or tu na tel y, Frederi ck’s trialattorney i s now dead, and Frederick’s own testi mony is apparent ly the only avail able evi dence regar ding the di scussi ons between Frederick and hi s att orney on the qu estion o f Fre derick ’s testifying. It is n otew orthy, how ever, th at there is noth ing in the record ind icating that Frederick informe d his coun sel that he disagree d with co unsel’s advice agai nst t esti fyi ng. Furt her, not hing in t he record i ndicat es that counsel t ook any type o f ac tive r ole in stop pin g F red erick fro m te stifyin g ot her than adv ising aga inst it. Fr ed er ick ad m itte d t ha t h e n ev er in fo rm ed th e tr ial co ur t th at h e w ish ed to tes tif y. We find it u nnec essary to d ecide wh ether F rederic k’s ha beas petition could properl y be deni ed without an evidentiaryhearing ba sed on the first prong of Stri ckland because we are satis fied that Frederick cannot sati sfy the second pr ong, that is , he has fail ed to demonstr ate “a r easonable probabil ity that, but for couns el’s unprofessi onal
error s, the resul t of the proceedi ng would have been diffe rent. ” See Stri ckland , 466 U. S. at 694. The testimony t

hat Frederick now clai ms he would have given would not have been compelli ng. It

would have added li ttl e for the juryto hear Fr ederic k testifythat he-8-

was intoxi cated when the j ury had heard other tes timonyconcerni ng the fact that he had been drinki ng. It

would have added li ttl e for the juryto hear Fr ederic k testifythat he and M eeke r had argu ed w hen th e jury hea rd testim ony fro m o ther w itnesse s con cernin g their argum ent. On the other hand , Frederick’s pro spects w ould hav e been d amag ed if the jury had heard at the guilt phase that he had previously been convicted of homicide. Thus, Frederi ck cannot show that there is a r easonable probabil ity that but for counsel ’s al leged errors th e outc om e of th e trial w ould have been diffe rent. For th ese rea sons , we a ffirm the ord er of th e D istrict Co urt.