2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-19-2011

Jaynes v. Grace

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1271

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Recommended Citation

"Jaynes v. Grace" (2011). 2011 Decisions. Paper 655.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 07-1271

_____________

JERREL JAYNES,

 Appellant

 v.

JAMES L. GRACE; THE DISTRICT

ATTORNEY OF THE COUNTY OF

PHILADELPHIA; THE ATTORNEY

GENERAL OF THE STATE OF PENNSYLVANIA

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 05-CV-2567)

District Judge: Honorable J. Curtis Joyner

____________

Argued June 5, 2008

Before: AMBRO, CHAGARES, and COWEN, Circuit Judges.

(Filed: August 19, 2011)

Teri B. Himebaugh, Esq. (Argued)

220 Stallion Lane

Schwenksville, PA 19473

Counsel for Appellant

David C. Glebe, Esq. (Argued)

District Attorney=s Office

Three South Penn Square
2

Philadelphia, PA 19107

Counsel for Appellee

____________

OPINION OF THE COURT

____________

CHAGARES, Circuit Judge.

Jerrel Jaynes appeals the order of the U.S. District Court for the Eastern District of 

Pennsylvania denying his petition for writ of habeas corpus. For the reasons set forth 

below, we will vacate the order and remand for the District Court to conduct an 

evidentiary hearing. 

 I. 

Because the facts are well known to the parties, we will discuss them only briefly. 

On July 20, 1995 at about 1:00 a.m., William McClam was parking his car, when another 

car pulled up and the man in the passenger seat shot McClam, hitting him in the back. 

The car then sped off. 

When the police arrived at the scene, McClam identified the shooter as “Jerrel.” 

McClam subsequently explained that he and Jerrel Jaynes‟ girlfriend, Brooky Price, had 

been in an altercation and he believed that Jaynes had shot him in retaliation for the 

incident. The gun, car, and clothing McClam described the shooter as wearing were 

never found. 

Jaynes was convicted of aggravated assault and other offenses in January 1997 

after a trial in the Court of Common Pleas of Pennsylvania. The sole evidence against 
3

Jaynes at trial was the victim‟s identification of him. Jaynes subsequently appealed to the 

Pennsylvania Superior Court, arguing, inter alia, that trial counsel, Louis T. Savino, 

rendered ineffective assistance because he failed to introduce James Wing as an alibi 

witness at trial. 

In support of his ineffective assistance claim, Jaynes attached an affidavit by 

Wing, explaining that he lived in the same house as Jaynes and had seen Jaynes at home 

on the night of shooting. According to Wing, Jaynes was babysitting his niece that night 

and “[t]here was no way possible that Jerrel Jaynes left the house that night, without me 

seeing him go down the stairs or asking [his mother] or myself to watch the child.” 

Supplemental Appendix (“SA”) 7. 

According to Wing, he gave counsel this information several weeks before trial, 

and counsel told Wing that “he would get back to [him],” but Wing never heard from 

counsel again. SA 7-8. Although Wing did not receive a subpoena to appear in court, he 

decided to attend the trial. During a recess, Jaynes told his counsel that Wing was 

present, and Jaynes‟ counsel interviewed Wing about his recollection of the night of the 

shooting. Counsel did not, however, ask Wing to testify.

The Superior Court affirmed the Court of Common Pleas‟ judgment of sentence. 

The court concluded that Wing‟s affidavit “fail[ed] to allege sufficient facts to create an 

alibi defense that would, if absent from trial, so prejudice defendant that he could not 

receive a fair trial.” SA 19. According to the court, “Mr. Wing alleges that he saw 

appellant between 8:30 and 9:30, but does not claim with assurance that appellant did not 
4

leave the house. Therefore, appellant has not fulfilled the threshold requirements to 

establish a claim for relief due to counsel‟s ineffectiveness.” SA 19 (citation omitted). 

The Pennsylvania Supreme Court denied Jaynes‟ request for allocatur. 

Jaynes subsequently filed a petition under the Pennsylvania Post Conviction Relief 

Act (“PCRA”). Counsel was appointed, but did not raise the issue of trial counsel 

ineffectiveness for failure to notice the alibi witness. The PCRA court dismissed the 

petition and the Superior Court affirmed its decision. Jaynes‟ request for allocatur was 

again denied by the Pennsylvania Supreme Court. 

Jaynes then filed this federal habeas petition. With respect to the issue on appeal 

here, Jaynes argued that trial counsel was ineffective for failing to notice and present 

Wing as an alibi witness. The District Court referred the petition to Magistrate Judge 

Jacob P. Hart. Magistrate Judge Hart issued a Report and Recommendation (R&R), 

recommending that the District Court grant Jaynes a new trial to allow the alibi witness 

testimony to be presented. The Magistrate Judge rejected the Superior Court‟s 

conclusion that Wing‟s affidavit was insufficient to establish an alibi defense and 

determined that Jaynes was prejudiced by counsel‟s failure to call Wing. 

The Commonwealth objected to the R&R, and the District Court sustained the 

objections, denying the habeas petition in its entirety. The District Court agreed with the 

Magistrate Judge that “[c]ontrary to the finding of the Superior Court, . . . Mr. Wing did 

claim with assurance that Mr. Jaynes did not leave the house. Thus, we find that in this 

respect, the state court‟s decision was erroneous.” Appendix (“App.”) 35 (emphasis in 
5

original). The District Court, however, determined that “Mr. Wing=s alibi testimony may 

not have been as air-tight as Petitioner would have us believe.” App. 37. The District 

Court concluded that “as we are required to give deference to trial counsel=s strategy, we 

cannot say with assurance that Mr. Savino=s representation and trial strategy was 

objectively unreasonable.” App. 37. 

This timely appeal followed. 

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253. 

We review de novo whether the District Court applied the appropriate standard of review 

in light of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See

Taylor v. Horn, 504 F.3d 416, 428 (3d Cir. 2007). 

Under 28 U.S.C. ' 2254, as amended by AEDPA, a state court‟s legal and factual 

determinations on the merits are entitled to deference. Lambert v. Blackwell, 387 F.3d 

210, 238 (3d Cir. 2004). Federal courts cannot grant habeas relief in claims adjudicated 

on the merits “[u]nless 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)(1),(2).

We have plenary review of the District Court=s determination regarding 

exhaustion. Holloway v. Horn, 355 F.3d 707, 713 (3d Cir. 2004).
6

III.

Before a federal court can review a habeas petition under § 2254, a petitioner must 

“exhaust[] the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). 

A petitioner must “„fairly present‟ all federal claims to the highest state court before 

bringing them in federal court.” Stevens v. Del. Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 

2002) (quoting Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002)). Jaynes raised his 

claim regarding counsel‟s ineffectiveness for failure to present the alibi witness on direct 

appeal, the Superior Court rejected the claim on the merits, and the Pennsylvania 

Supreme Court denied the petition for leave to appeal. Jaynes therefore exhausted his 

state court remedies, and we next consider the merits of his ineffective assistance of 

counsel claim. 

IV.

Jaynes argues that the District Court erred in denying his habeas petition, claiming 

that counsel‟s representation fell below an objective standard of reasonableness and he 

was prejudiced by his counsel=s failure to call the alibi witness. In the alternative, Jaynes 

requests that we remand this case for an evidentiary hearing. For the reasons stated 

below, we will grant Jaynes‟ request for remand. 

At the outset, we consider whether AEDPA deference is appropriate. As both the 

District Court and the Magistrate Judge correctly observed, the Superior Court erred in 

finding that Wing “d[id] not claim with assurance that appellant did not leave the house.” 

SA 19. Indeed, Wing asserted that “[t]here was no way possible that Jerrel Jaynes left the 
7

house that night.” SA 7. Upon considering this error, the Magistrate Judge determined 

that “the Superior Court‟s conclusion regarding prejudice was based on an unreasonable 

determination of the facts which resulted in an unreasonable application of the 

[Strickland v. Washington, 466 U.S. 668 (1984)] standard.” App. 6 (citing 28 U.S.C. §

2254(d)(2)). The District Court disagreed and deferred to the state court‟s decision. We 

need not decide this issue, however, as we reach the same result either under de novo

review or in light of AEDPA deference. See Taylor, 504 F.3d at 453 (explaining that 

“under either standard of review,” AEDPA or de novo, habeas petitioner=s claim was 

meritless) (citing Holloway, 335 F.3d at 719 & n.6, 729 (determining that under either de 

novo or AEDPA standard of review, result in habeas case would be the same)). 

It is well-established that under Strickland, a “defendant must overcome the 

presumption that, under the circumstances, the challenged action might be considered 

sound trial strategy.” Strickland, 466 U.S. at 689 (quotation marks omitted). 

Significantly, however, there is a “tiered structure with respect to Strickland‟s strategic 

presumptions.” Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005). If the record 

indicates that counsel has conducted a “thorough investigation of the relevant law and 

facts,” then a “strong,” “virtually unchallengeable” presumption attaches to counsel‟s 

actions. Id. at 500. Otherwise, “strategic choices made after less than complete 

investigation are reasonable precisely to the extent that reasonable professional 

judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91. 
8

The current record in this case indicates that the extent of Savino‟s investigation 

involved calling Wing three to four weeks before trial, listening to Wing‟s account of 

events, and never following up – a far cry from the kind of “thorough investigation of the 

law and facts” to which a “strong presumption” of reasonability attaches. As a result, 

Savino‟s conduct is “reasonable precisely to the extent that reasonable professional 

judgments support the limitations on investigation.” Strickland, 466 U.S. at 691. A

“defendant 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, 428 F.3d at 499-500 (footnote omitted). In regard to the former approach, we 

have explicitly noted “that an inquiry into whether counsel actually had some strategy is 

permissible.” Id. at 499 n.7. Such an inquiry seems particularly appropriate in a case 

such as this, in which the record discloses little and that virtual silence is attributable 

neither “to lack of diligence on the part of the petitioner [n]or . . . to the unavailability of 

counsel,” id. at 500, but rather to the frustration of petitioner‟s attempts to develop the 

requisite facts. Indeed, the record before this Court only casts doubt on Savino‟s decision

not to provide notice of an alibi or call Wing as a witness at trial. Wing‟s testimony 

would have directly contradicted the only evidence presented at trial against Jaynes – the 

victim‟s identification testimony. Significantly, “„an attorney‟s failure to present 

available exculpatory evidence is ordinarily deficient, unless some cogent tactical or 

other consideration justified it.‟” Pavel v. Hollins, 261 F.3d 210, 220 (2d Cir. 2001) 

(quoting Griffin v. Warden, 970 F.2d 1355, 1358 (4th Cir. 1992)). 
9

The District Court does not appear to have previously considered the necessity of 

an evidentiary hearing, at least not explicitly.

1 Both of the considerations identified by 

this Court in Palmer v. Hendricks, 592 F.3d 386 (3d Cir. 2010), however, counsel in 

favour of such a hearing. Specifically, (1) assuming that Jaynes‟ factual allegations are 

true, “the petition presents a prima facie showing which, if proven, would enable the 

petitioner to prevail on the merits of the asserted claim,” and (2) “the factual allegations 

are [not] „contravened by the existing record‟” in this case. Palmer, 592 F.3d at 393 

(quoting Schriro v. Landrigan, 550 U.S. 465, 474 (2007)). Accordingly, rather than 

engage in speculation regarding Savino‟s strategy, we will remand to the District Court to 

conduct an evidentiary hearing. 

V.

For the foregoing reasons, we will vacate the order denying Jaynes‟ petition and 

remand to the District Court to conduct an evidentiary hearing. 

 

1

 This failure may be attributable to two factors: first, the case came before the District 

Court in the form of the Magistrate Judge‟s R&R granting Jaynes habeas relief without 

the aid of an evidentiary hearing, and second – and perhaps related – Jaynes did not 

request an evidentiary hearing before the District Court. Jaynes did, however, request an 

evidentiary hearing before the state court, and was thus “diligent in his attempt to develop 

a factual basis for his claim in the state court proceedings.” Palmer v. Hendricks, 592 

F.3d 386, 392 (3d Cir. 2010). As a result, the District Court is not barred from holding an 

evidentiary hearing pursuant to 28 U.S.C. § 2254(e)(2).