2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-8-2005

Henderson v. DiGuglielmo

Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3256

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-3256

CLARK HENDERSON,

 Appellant

v.

*DAVID DiGUGLIELMO;

THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;

THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

(*Substituted pursuant to Rule 43(c), Fed. R. App. P.)

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Civil Action No. 00-cv-02437

(Honorable Anita B. Brody)

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 8, 2005

Before: SCIRICA, Chief Judge, ROTH and FUENTES, Circuit Judges

(Filed July 8, 2005)

OPINION OF THE COURT
 Henderson was convicted following the second trial of the defendants. The first trial 1

ended in the granting of a defense motion for a mistrial.

 The parties contest whether Petitioner also raised the issues of jury tampering and jury 2

misconduct in the collateral state proceeding. We return to this question infra. 

2

SCIRICA, Chief Judge.

Clark Henderson petitions for writ of habeas corpus under 28 U.S.C. § 2254 on the

basis of ineffective assistance of trial counsel, jury tampering, and juror misconduct. The

District Court, adopting the Magistrate Judge’s report and recommendation, dismissed the

petition. We will affirm.

I. BACKGROUND

Following an altercation in South Philadelphia that left two men dead and another

seriously injured, Petitioner was tried before a jury in the Philadelphia County Court of

Common Pleas. On August 17, 1993, following a three-week multi-defendant jury trial,1

Henderson was convicted of first-degree murder, third-degree murder, aggravated assault,

criminal conspiracy, and possession of an instrument of a crime. He was sentenced to life

in prison. The Superior Court of Pennsylvania affirmed the conviction and sentence on

direct review, Commonwealth v. Henderson, 668 A.2d 1191 (Pa. Super. Ct. 1995), and

the state Supreme Court denied allocatur, 675 A.2d 1244 (Pa. 1996).

On April 17, 1997, Petitioner filed for collateral state relief under Pennsylvania’s

Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq., alleging, inter alia,

ineffective assistance based on trial counsel’s failure to call exculpatory witnesses. The 2
3

PCRA court held an evidentiary hearing and dismissed the petition on the merits. The

state Superior Court affirmed, Commonwealth v. Henderson, 747 A.2d 412 (Pa. Super.

Ct. Sept. 22, 1999), and the Pennsylvania Supreme Court denied allocatur, 751 A.2d 186

(Pa. Feb. 10, 2000).

On May 6, 2000, Henderson filed a timely pro se habeas petition under 28 U.S.C.

§ 2254. In his initial petition, Henderson alleged ineffective assistance of counsel. He

claimed his trial counsel was ineffective for failure to call four exculpatory witnesses. By

leave of court, he filed an amended pro se petition on July 10, 2000, alleging ineffective

assistance of counsel and denial of due process due to jury tampering and juror

misconduct. The District Court appointed counsel. On November 22, 2002, the

Magistrate Judge granted leave to file a counseled amendment to petitioner’s amended

petition. Henderson filed this amended petition on April 2, 2001, alleging ineffective

assistance of counsel for failure to call exculpatory witnesses, and denial of due process

and a fair trial due to jury tampering and misconduct.

The District Court referred Henderson’s petition to a Magistrate Judge who issued

a Report and Recommendation (“R&R”) recommending denial of Henderson’s petition. 

The District Court adopted the R&R in its entirety, and on June 10, 2003, denied

Henderson’s petition.

We granted a Certificate of Appealability on three issues: first, whether

Henderson’s attorney was ineffective for failure to call four exculpatory witnesses;
 The AEDPA governs § 2254 habeas petitions filed on or after April 24, 1996. See 3

Lindh v. Murphy, 521 U.S. 320, 327 (1997).

4

second, whether the District Court erred in allowing petitioner to amend his petition

following expiration of the AEDPA statute of limitations; and third, whether the District

Court properly found that the state court decision regarding the jury

tampering/misconduct claim was neither unreasonable nor contrary to federal law.

The District Court had jurisdiction under 28 U.S.C. § 2254. Appellate jurisdiction

arises under 28 U.S.C. § 1291 and 28 U.S.C. § 2253. Our review is plenary. Marshall v.

Hendricks, 307 F.3d 36, 50 (3d Cir. 2002) (citing Duncan v. Morton, 256 F.3d 189, 196

(3d Cir. 2001)).

II. AEDPA STANDARDS

Section 2254 allows federal courts to grant habeas corpus relief to a prisoner “in

custody pursuant to the judgment of a State court” where his custody violates the

Constitution of the United States of America. 28 U.S.C. § 2254(a). Because

Henderson’s petition is governed by the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), P.L. 104-132, 110 Stat. 1214, he is entitled to habeas relief only 3

where the state court proceedings “resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law,” or “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).
5

A state court decision may be “contrary to” clearly established federal law in one

of two ways. First, a state court decision is contrary to clearly established precedent

where “the state court applies a rule that contradicts the governing law set forth in [the

Supreme Court’s] cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). Second, a state

court decision will be “contrary to” the Supreme Court’s clearly established precedent “if

the state court confronts a set of facts that are materially indistinguishable from a

decision of [the Supreme] Court and nevertheless arrives at a result different from [the]

precedent.” Id. at 406. A state court decision involves an “unreasonable application” of

federal law, on the other hand, where it “correctly identifies the governing legal rule but

applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08.

Habeas relief will also be granted where a state court decision is “based on an

unreasonable determination of the facts.” Under the AEDPA, however, factual

determinations made by the state court are accorded a presumption of correctness: “a

federal court must presume that the factual findings of both state trial and appellate

courts are correct, a presumption that can only be overcome on the basis of clear and

convincing evidence to the contrary.” Stevens v. Del. Correctional Ctr., 295 F.3d 361,

368 (3d Cir. 2002) (citing 28 U.S.C. § 2254(e)(1)). To prevail under this “unreasonable

determination” prong, therefore, petitioner must demonstrate by clear and convincing

evidence that the state court’s determination of the facts was objectively unreasonable in

light of the evidence available. Mere disagreement with the state court– or even a
 Henderson’s conviction became final on July 17, 1996, upon expiration of his time to 4

seek direct review in the United States Supreme Court by writ of certiorari (90 days). 

Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999). The one-year statute of

limitations began to run on July 18, 1996, and continued running until petitioner filed his

PCRA petition on April 17, 1997, at which time 274 days had elapsed. The statute of

limitations was then tolled until February 10, 2000, during the pendency of his state

collateral attack. See 28 U.S.C. § 2244(d)(2). Between February 10, 2000, and May 6,

2000, when petitioner filed his § 2254 habeas petition in federal court, 86 days elapsed. 

Petitioner’s initial habeas petition, therefore, is timely under AEDPA’s one-year statute of

limitations.

6

showing of erroneous factfinding by the state court– will be insufficient to warrant relief,

provided that the state court acted reasonably. See Lambert v. Blackwell, 387 F.3d 210,

235 (3d Cir. 2004); Ward v. Sternes, 334 F.3d 696, 703-04 (7th Cir. 2003).

III. TIMELINESS

The parties agree Henderson’s initial habeas petition was timely filed under

AEDPA’s one-year statute of limitations. Henderson’s amended habeas petition, 4

however– in which he first asserted jury tampering and juror misconduct as grounds for

relief– was filed after the AEDPA statute of limitations had expired. Although

Henderson’s amended and second amended petitions were filed with the District Court’s

permission, the government argues the District Court erred in granting leave to amend. 

By allowing Henderson to amend his petition to include new claims after the one-year

limitation period had ended, the government argues, the District Court enabled Henderson

to circumvent the requirements of AEDPA.
7

Under AEDPA, a one year limitations period applies to habeas petitions brought

by persons in custody pursuant to an order of a state court. 28 U.S.C. § 2244(d). 

Although leave to amend “shall be freely given when justice so requires,” Fed. R. Civ. P.

15(a), amendment may not be used to evade the strictures of AEDPA. United States v.

Duffus, 174 F.3d 333, 336-37 (3d Cir. 1999).

In Duffus, the petitioner filed a timely petition for habeas corpus in which he raised

three claims. Id. at 335. Six months later, following the expiration of AEDPA’s one year

limitations period, Duffus sought to amend his original habeas petition by adding a fourth

claim. Id. We held that although the District Court “could have permitted an amendment

to clarify a claim initially made,” Duffus’ proposed amendment would have asserted a

“completely new” claim. Id. at 337. Because the claim was “completely new,” it did not

“relate back” to his original petition under Fed. R. Civ. P. 15(c) and thus could not be

deemed timely. Id. Had the District Court granted leave to amend, we noted, “it would

have frustrated the intent of Congress that claims under 28 U.S.C. § 2255 be advanced

within one year after a judgment of conviction becomes final.” Id.

We returned to this issue one year later in United States v. Thomas, 221 F.3d 430

(3d Cir. 2000), where we elaborated upon the intersection of AEDPA’s limitations period

and “relation back” under Rule 15(c). In Thomas, petitioner filed a timely § 2255

petition. After the statute of limitations had expired, he sought leave to amend the

petition to allege facts in support of his previously asserted claims. Id. at 432. Reluctant
8

to “eliminate or compromise what will likely be a prisoner’s only opportunity to

collaterally challenge his sentence by refusing to even consider whether a proposed

amendment relates back to his or her petition,” id. at 436, we remanded for the District

Court to consider whether Thomas’ petition related back under Rule 15(c):

Rule 15(c)(2) applies to § 2255 petitions insofar as a District Court may, in

its discretion, permit an amendment to a petition to provide factual

clarification or amplification after the expiration of the one-year period of

limitations, so long as the petition itself was timely filed and the petitioner

does not seek to add an entirely new claim or new theory of relief.

Id.

Henderson’s amended and second amended petitions involve “completely new”

claims. In his initial petition he alleged ineffective assistance of counsel. In his amended

petitions, he added claims for denial of due process due to jury tampering and juror

misconduct. These claims are factually and legally distinct from Henderson’s original

claim for ineffective assistance of counsel. Under other circumstances, we would remand

to the District Court for a finding as to whether newly alleged facts and claims “relate

back” under Rule 15(c). See Thomas, 221 F.3d at 436-37. But it is clear from the record

that a claim for denial of due process due to jury tampering, on the one hand, and a claim

for ineffective assistance of counsel for failure to call four exculpatory witnesses, on the
 Even if Henderson were entitled to equitable tolling, we find no merit to either of his 5

jury claims (jury tampering and juror misconduct).

One juror was followed by an unidentified individual during trial. She was

ultimately approached and advised to “make the right decision for [her] own good,” an

encounter she later discussed with two co-jurors. The court excused all three jurors, and

denied defendant’s motion for a mistrial only after having individually colloquied each

remaining juror and assuring their ability to be fair and impartial. Although private

communications with jurors are “presumptively prejudicial,” Remmer v. United States,

347 U.S. 227, 229 (1954), this presumption is not conclusive. United States v. Vega, 285

F.3d 256, 266 (3d Cir. 2002). The court determined no juror bias existed, noting that the

remaining jurors had no knowledge of any improper communication. State court findings

of fact are presumed correct, 28 U.S.C. § 2254(e)(1), and Henderson has not introduced

clear and convincing evidence to the contrary. We believe the state court effected a

reasonable application of federal law when, having interviewed each remaining juror and

made a finding of impartiality, it denied Henderson’s motion for a mistrial.

Henderson also alleges deprivation of a fair trial due to juror misconduct, arising

from a juror’s alleged solicitation of a bribe from one of Henderson’s co-defendants. 

Following trial, an extensive grand jury investigation concluded that no jury misconduct

had occurred. The trial court then conducted a post-verdict hearing and denied

Henderson’s motion for a mistrial. The Superior Court– crediting the trial court’s

credibility determinations– affirmed its denial of a mistrial on jury tampering grounds,

reasoning that “[t]he evidence presented abundantly supports the court’s finding that the

instant allegation of jury tampering is meritless.” The trial court had the benefit of the

transcript of the grand jury investigation and its first-hand observations of the witnesses’

demeanor and credibility. Petitioner has not offered clear and convincing evidence to the

contrary, thus we presume the state court’s factual findings correct. Accordingly, we find

the state court’s factual determination that no juror misconduct occurred to be reasonable

and not contrary to any federal law.

9

other, are unrelated. Thus no remand is necessary. Henderson’s due process claims are

untimely under Thomas and will be dismissed.5

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

In his timely-filed claim, Henderson alleges his trial counsel was ineffective for

failing to call four potentially exculpatory witnesses. Henderson contends each of these
 Section 2254 prohibits a federal court from reviewing a habeas petition unless all 6

state court remedies have been exhausted. 28 U.S.C. § 2254(b)(1)(A). Petitioner

presented the factual and legal substance of his ineffectiveness claim to the highest

available state court when he petitioned the Pennsylvania Supreme Court for allocatur

review. Commonwealth v. Henderson, 751 A.2d 186 (Pa. 2000). His state court

remedies, therefore, have been exhausted and his claims are properly before this court on

habeas review. See O'Sullivan v. Boerckel, 526 U.S. 838, 846-48 (1999) (holding the

exhaustion requirement requires a petitioner to have sought discretionary review where

available); McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir.1999) (citing Anderson v.

Harless, 459 U.S. 4, 6 (1982)) (holding that a petitioner “must present a federal claim’s

factual and legal substance to the state courts in a manner that puts them on notice that a

federal claim is being asserted” in order to have “fairly presented” a claim for the

purposes of the exhaustion requirement).

10

four witnesses were willing and able to testify that at the time of the crime Henderson was

a block away from the gunfight, carrying his daughter and talking to friends. Henderson

also alleges that he provided his attorney with the names of these four witnesses well

before trial. This ineffectiveness claim is properly before this court.6

The applicable federal precedent for ineffective assistance claims is the wellsettled two-prong test established by the Supreme Court in Strickland v. Washington, 466

U.S. 668 (1984). Under Strickland, in order to merit habeas relief based on a claim of

ineffective assistance of counsel petitioner must demonstrate that: (1) his attorney’s

performance was deficient, and (2) he was prejudiced by this deficiency. Strickland, 466

U.S. at 687. To demonstrate deficiency, petitioner must establish that counsel’s

performance “fell below an objective standard of reasonableness.” Id. at 688. To

overcome the presumption that counsel was effective, petitioner bears the burden of

establishing that counsel’s performance was unreasonable under “prevailing professional
11

norms.” Id. at 688; see also Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir.1999) (citing

Strickland, 466 U.S. at 689) (“In evaluating counsel’s performance, we are ‘highly

deferential’ and ‘indulge a strong presumption’ that, under the circumstances, counsel’s

challenged actions ‘might be considered sound . . . strategy.”). To demonstrate

prejudice, petitioner must demonstrate that “counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S.

at 687. Ultimately, the “benchmark for judging any claim of ineffectiveness must be

whether counsel’s conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result.” Id.

Having identified the relevant federal standard, we next ask whether the Superior

Court’s decision was “contrary to” the Strickland standard, involved an “unreasonable

application” of Strickland, or “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented.” 28 U.S.C. 2254(d)(1). The

PCRA Court determined counsel’s decision not to call these witnesses at trial was

reasonable, and the Superior Court affirmed. The Superior Court’s analysis follows:

The . . . failure to call the witnesses in question was part of a

reasonable trial strategy, and thus may not be the basis of an ineffective

assistance of counsel claim. See [Commonwealth] v. Kimball, 555 Pa.

[299], 312 [(1999)] (requiring PCRA petitioner to show ‘that counsel had

no reasonable strategic basis for his or her action or inaction”). With

respect to three of the four witnesses, Craig Elder, Sandra Robinson, and

Monica Rhodes, the record supports this conclusion. All three would have

placed [Petitioner] at the scene of the crime. However, the record from

[Petitioner’s] original trial shows that counsel offered evidence to the effect

that [Petitioner] was never identified as having been at the scene of the
12

murders. It is certainly a reasonable trial strategy to attempt to show that a

criminal defendant was not present at the scene of the crime. Obviously, a

defendant employing such a strategy should not present any witnesses who

may be able to place him at the scene. Since trial counsel was acting

reasonably in failing to call the three witnesses in question, he cannot be

found to have been ineffective.

[Petitioner’s] claim also fails with respect to the fourth witness,

James Brooks, but for different reasons. There is no indication that this

witness would have placed [Petitioner] at the scene of the crime. However,

there is also no indication that his testimony would have been particularly

helpful to [Petitioner]. The record does not clearly show that this witness

even knew who [Petitioner] was at the time of the incident. Moreover, the

witness had ducked behind a wall when the shooting began, and therefore

did not see much of what took place. We find that [Petitioner] has not

proven that this witness’ testimony was ‘necessary to avoid prejudice.’

Holland, 727 A.2d at 566-67. Therefore, we find that it was proper for the

PCRA court to dismiss [Petitioner’s] argument that trial counsel was

ineffective in failing to call the witness in question.

PCRA Super Ct. Opinion (citations to the record omitted).

The Superior Court applied Commonwealth v. Kimball, 555 Pa. 299 (1999). Both

this court and the Pennsylvania Supreme Court have held that the ineffective assistance

standard set forth by the Pennsylvania courts is materially identical to that articulated in

Strickland. See Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000) (finding that the

Pennsylvania standard is “not contrary to” the Strickland test); Commonwealth v. Pierce,

515 Pa. 153, 161 (1987) (holding that Pennsylvania’s ineffectiveness standard and the

Strickland test “constitute the same rule”). Given that the Superior Court applied the

correct standard, its opinion is not “contrary to” federal law.

Nor does the Superior Court’s analysis constitute an unreasonable application of

federal law. This prong requires us to inquire “whether the Pennsylvania courts’
13

application of Strickland to [petitioner’s] ineffectiveness claim was objectively

unreasonable, i.e., the state court decision, evaluated objectively and on the merits,

resulted in an outcome that cannot reasonable be justified under Strickland.” Werts, 228

F.3d at 204.

In this case, the Superior Court’s analysis can be justified under Strickland. 

Counsel’s failure to call a witness “is precisely the sort of strategic trial decision that

Strickland protects from second-guessing.” Sanders v. Trickey, 875 F.2d 205, 212 (8th

Cir. 1989). The Superior Court concluded trial counsel declined to place these witnesses

on the stand because their testimony would conflict with defense strategy– that is, they

would place him near the scene of the crime, whereas trial counsel was attempting to

prove that Henderson was not in the area at the time of the gunfight. We find this factual

determination credible, and petitioner has not presented clear and convincing evidence to

the contrary.

Counsel’s decision not to introduce testimony potentially in conflict with the

central defense strategy is not unreasonable. See, e.g., LaFrank v. Rowley, 340 F.3d 685

(8th Cir. 2003) (counsel’s alleged ineffectiveness for failure to call a witness was

evaluated under Strickland and, because it was a “matter of trial strategy,” found to be

reasonable); Castillo v. Matesanz, 348 F.3d 1, 15 (1st Cir. 2003) (affirming district

court’s determination that trial counsel’s failure to call two witnesses whose proposed

testimony may have contradicted defendant’s own testimony was “a strategic decision
14

which the court will not second guess,” and was “well within the wide range of

reasonable professional assistance,” reasoning that the district court’s ruling was “an

appropriate application of Strickland’s insistence on the ‘wide latitude counsel must have

in making tactical decisions’”) (quoting Strickland, 466 U.S. at 689); see also Philson v.

Barbo, 77 Fed. Appx. 123, 127, 2003 WL 22316930 (3d Cir. Oct.9, 2003) (under

“unreasonable determination of the facts” prong of section 2254, counsel’s decision not

to call two witnesses because of a potential conflict in testimony was “trial strategy” to be

afforded “appropriate deference” and did not constitute ineffective assistance of counsel

under Strickland ); United States v. Archer, 59 Fed. Appx. 183, 185, 2003 WL 249089

(9th Cir. Feb.4, 2003) (on appeal from § 2255 denial, court applied Strickland’s “strong

presumption” of competence to trial counsel’s decision not to call a specific witness,

holding that this strategic decision did not constitute unreasonable professional

performance under Strickland ); United States v. Dejesus, 57 Fed. Appx. 474, 478 2003

WL 193736 (2nd Cir. Jan.28, 2003) (trial counsel’s decision not to call a character

witness was grounded in a strategy of preventing the prosecution from attacking

defendant’s character and therefore was “inherently tactical,” “generally should not be

disturbed,” and was not found to be “objectively unreasonable” under Strickland ).

Henderson makes much of the distinction between “at” the crime scene and “near”

the crime scene. He contends that Rhodes, Robinson, and Elder would have testified that

he was down the street from the gunfight at the times shots were fired, and went to the
15

crime scene only after his brother had been wounded. Placing him “near” the crime

scene, he argues, would not have conflicted with a defense strategy which highlighted his

absence from the crime scene itself.

Both the PCRA Court and the Superior Court found this argument unpersuasive,

noting the inconsistency between defense testimony presented at trial and the testimony

offered by these three witnesses. The testimony presented by the defense suggested doubt

as to whether Henderson was present at the scene of the crime. Had counsel also

presented testimony proving Henderson was present at the scene– albeit not until

immediately after the shooting– it could have rendered the defense strategy both

confusing and unpersuasive. Counsel’s choice to assert one theory of innocence is a

tactical decision we will not second-guess. We find the state courts’ analysis of trial

counsel’s decision not to call these three witnesses to the stand to be a reasonable

application of Strickland, based upon a reasonable determination of the facts.

With respect to the fourth witness, James Brooks, the Superior Court found no

prejudice stemming from counsel’s decision not to call Brooks. We agree. Nothing in

Brooks’ statement proves or disproves any element of Henderson’s defense. Brooks

identified defendant Prince Hagwood, and stated that he saw Hagwood fire a weapon. He

stated nothing with respect to Henderson’s presence or absence at the crime scene. 

Moreover, he indicated to the police that he was “ducking for cover” during portions of

the shooting, suggesting that he missed many of the events which took place.
16

Nothing in Brooks’ statement indicates that his testimony would have been

particularly helpful to Henderson. Under Strickland, prejudice “requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Strickland, 466 U.S. at 687. To satisfy this test, it must be shown that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694.

We agree with the state courts that counsel’s failure to call Brooks as a witness

does not undermine confidence in the outcome of trial, as there is little likelihood that

Brooks’ vague testimony would have influenced the outcome of trial. 

With respect to each of the four witnesses, therefore, we are convinced that

counsel was not ineffective for failing to call them to the stand at trial. Accordingly, the

Superior Court applied Strickland reasonably, and we will affirm.

V. CONCLUSION

For the foregoing reasons, we will affirm the order of the District Court denying

Henderson’s petition for writ of habeas corpus.