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w . v i l l a no v a . e du/thir dc ir c uit_2013/337NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 11

- 3845

_____________ FRANK HUGHLEY, Appellant

v. GOVERNMENT OF THE VIRGIN ISLANDS

___ ____________ On Appeal from the Appellate Div ision of the District Court of the Virgin Islands District Court No. 1

- 06

- cv - 00110 District Judge: The Honorable Curtis V. Gomez District Judge: The Honorable Raymond L. Finch Superior Court Judge: The Honorable Audrey L. Thomas Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 3, 2012 Before: SMITH, HARDIMAN, and ROTH, Circuit Judges

(Filed: August 23, 2013 )

_____________________ OPINION

_____________________ SMITH, Circuit Judge. In 1995, a jury convicted Frank Hughl e y of th ree counts of aggravated rape in the first degree and six counts of unlawful sexual contact in the first degree in violation of 14 V.I. Code § § 170 0(a)(1) and 170 8(2)

. The Territorial Court of the Virgin Islands2

sentenced Hughley to 26 years ’ imprisonment without parole. On appeal to the Appellate Division of the District Court of the Virgin Islands, Hughley argued that his convictions should be set aside because of the ineffectiveness of his trial counsel. He asserted that his counsel was ineffective fo r several reasons, including his counsel ’s decision to empanel
an all

- female jury

. Because ineffective assistance claims are usually not heard on direct appeal in light of the undeveloped record , the Appellate Division dismissed Hughley’s appeal. Therea fter, he filed a habeas petition under 5 V.I. Code § 1303 in the Superior
Court of the Virgin Islands , asserting th e same ineffective assistance of counsel claim. 1
Consistent with Strickland v. Washington , 466 U.S. 668 , 687 (1984), t he Superior Court

cons idered whether Hughley had been deprived of the effective assistance of counsel and , if so, whether he had been prejudiced by counsel’s deficient performance. The Superior
Court determined that counsel’s performance was “the product of a reasoned trial

st rategy” and that Hughley had not complained about counsel’s decisions at trial. Alternatively, the Superior Court concluded that “[e]ven if [counsel’s] decisions constituted serious errors, it is clear that Hughley did not estab lis h prejudice from these

e rrors.” For these reasons, the Superior Court denied his habeas petition. A timely appeal to the Appellate Division fol lowed , 48 U.S.C. § 1613a(a) , which
remanded Hughley’s case to the Superior Court to rule on Hughley’s request for a

1 On Octobe r 29, 2004, when the Virgin Islands legislature established the Supreme Court of the Virgin Islands as an appellate court, it changed the name of the Territorial Court of the Virgin Islands to the Superior Court of the Virgin Islands. See Act of Oct. 29, 2004, No. 6687, sec. 6, § 2, 2004 V.I. Legis. 6687 (2004).3

certificate of pro bable cause under Virgin Islands Rule of Appellate Procedure 14(b). 2 Although the Superior Court denied the cert ificate, Hughley’s notice of appeal constituted “a request to the Appellate Division for a certificate ” of probable cause. V.I. R. App. P. 14( b). The Appellate Division implicitly concluded that a constitutional question w arranted review and proceeded to address the merits of Hughley’s ineffective
assistance of counsel claim

. T he Appellate Division disagreed with the Superior Court’s determi nation that Hughley’s counsel ’s performance was based on a reasonable trial strategy. It conclude d that “[i]n the aggregate,” counsel’s “representation fell below the objective threshold of reasonably competent representation.” Nonetheless, the Appellate Division affirmed the Superior Court’s judgment because it agreed that Hughley could not satisfy the prejudice prong of Strickland . It cited the testimony of the examining physician , the statem ents to

t he examining physician by one of the child victims a bout what had occurred , the testimony of the ch i ld psychologist w ho worked with the second child victim, the identification of Hughley by one of the child victims, and the damning testimony of the

two child victims. Proceeding pro se, Hughley filed a t imely appeal to this Court pursuant to 48 U.S.C. § 1613a(c) and 28 U.S.C. § 1291. Hughley again asserts that the ineffectiveness of his counsel warrants vacating his convictions.

2 A “certificate of probable cause” was the predecessor of the “certificate of appealability” required under 28 U.S.C. § 2253(c)(1). The certificate of probable cause required the petitioner “to make a ‘substantial showing of the denial of a federal right.’” Barefoot v. Estelle , 463 U.S. 880, 893 (1983) (brackets and internal citation omitted).4 I. Before turning to the merits, we examine our jurisdiction over this appe al in light of our “independent responsibility” to confirm our jurisdiction. 3 In re Flat Glass Antitrust Litig. , 288 F.3d 83, 88 n.5 (3d Cir. 2002) (quoting In re Ford Motor Co. , 110 F.3d 954, 958

– 59 (3d Cir. 1997)). Our colleague’s thoughtful dissent co ntends that we lack jurisdiction because a territorial law eliminated the District Court’s appellate jurisdiction over Hughley’s appeal. We disagree

. Congress authorized the Virgin Islands legislature to vest original jurisdiction over territorial actio ns in the territorial courts. See 48 U.S.C. § 1612(b); Callwood v. Enos , 230 F.3d 627, 631 (3d Cir. 2000). The Virgin Islands legislature eventually did so by passing 4 V.I. Code § 76(a), which gave the Superior Court “original jurisdiction in all civil actions regardless of the amount in controversy” and “in all criminal actions.” 4 V.I. Code § 76(a), (b). In Callwood , we interpreted § 76(a) as implicitly repealing the District Court’s original jurisdiction under 5 V.I. Code § 1303 to hear territorial habeas petitions. 230 F.3d at 632. As a result, we concluded that the District Court lacked original jurisdiction over territorial habeas petitions. Id.
But Callwood ’s holding does not extend to the District Court’s appellate jurisdiction over Superior Court rulings on territorial habeas petitions. Callwood involved only a question about the District Court’s original jurisdiction under 5 V.I. Code

3 Of course, our discussion in this section pertains only to appeals filed before January 27, 2007, t he date on which the Virgin Islands Supreme Court officially assumed appellate jurisdiction over appeals from the Superior Court. See Hypolite v. People of Virgin Islands , 2009 WL 152319, at *2 (V.I. Jan. 21, 2009).5

§ 1303 over territorial habeas petitions. The case had nothing to do with the District Court’s appellate jurisdiction under 4 V.I. Code § 33 over territorial habeas petitions. See 48 U.S.C. § 1613a(a) (“[T]he District Court of the Virgin Islands shall have such appellate jurisdiction over the courts of the Virgin Islands established by local law to the

exten t now or hereafter prescribed by local law

. . . .”); 4 V.I. Code § 33 (granting, pursuant to 48 U.S.C. § 1613a(a), appellate jurisdiction to the District Court “to review the judgments and orders of the [Superior Court] in all .

. . civil cases and crimin al cases in which the defendant has been convicted, other than on a plea of guilty”); Gov’t of Virgin Islands v. Warner , 48 F.3d 688, 692 (3d Cir. 1995) (holding that under the Revised Organic Act, 4 V.I. Code § 33’s limitation on cases involving guilty pl eas does not preclude appellate jurisdiction over such cases where colorable constitutional claims are raised). Nor can Callwood ’s holding be extended to divest the District Court of its appellate jurisdiction over territorial habeas petitions. By its pl ain text, § 76(a) alters only the “original jurisdiction” of the District Court. As we previously acknowledged in Parrott v. Government of Virgin Islands , § 76(a) has no effect on the District Court’s appellate jurisdiction under 4 V.I. Code § 33 over ter ritorial habeas petitions. 230 F.3d 615, 619 & n.5 (3d Cir. 2000) (noting that, although “the District Court loses jurisdiction to the Territorial Court over local matters” to the extent that the Virgin Islands legislature divests the District Court of “o riginal jurisdiction,” the District Court “continues, however, to sit as an appellate court to review local matters decided by the Territorial Court” under 48 U.S.C. § 1613a(a)). 4

4 We recognize that under Walker v. Gov ernment of the Virgin Islands, 230 F.3d 82, 896

We therefore conclude that the District Court properly exercised appellate jurisdiction over Hughley’s appeal.
II. Having confirmed our jurisdiction, we now turn to the merits of Hughley’s claim.
We exercise plenary review o ver the adjudication of Strickland ’s performance and prejudice prong s . Duncan v. Morton , 256 F.3d 189, 2 00 (3d Cir. 2001). After consideration of the briefs of the parties and the record before us, we will not disturb the judgment of the Appellate Division, which affirmed the Superior Court’s denial of Hughley’s habeas petition under 5 V.I. Code § 1303. We agree with the Appellate Division that Hughley cannot demonstrate prejudice in light of the overwhelming evidence against him

. 5 For the reasons set forth above, we will affirm the judgment of the Appellate Division of the District Court.

(3d Cir. 2000), a habeas petitioner in custody pursuant to a sentence of the Territorial Court of the Virgin Islands who is seeking to appeal the denial of his petition for habeas corpus under § 2254 must obta in a certificate of appealability to proceed before this court. A certificate of appealability is not necessary here because the District Court did not deny relief under § 2254. Instead, the District Court, acting in its capacity under 48 U.S.C. § 1613a( a) as the Appellate Division, affirmed the judgment of the Superior Court denying Hughley’s habeas petition under 5 V.I. Code § 1303. 5 We are mindful that Hughley’s brief focuses on the deficient performance prong of his Strickland claim. Because we agr ee with the Appellate Division that Hughley cannot show that he was prejudiced, we need not address the deficient performance prong. 466 U.S. at 697 (instructing that courts need not “address both components . . . if the defendant makes an insufficient sh owing on one”).1

Hughley v. Government of the Virgin Islands, No. 11

- 3845 HARDIMAN, Circuit Judge , dissenting. I would dismiss this appeal for lack of jurisdiction

. The majority contends that jurisdiction lies pursuant to Virgin Islands law (5 V.I.C. § 1303). In my view , the District Court of the Virgin Islands has jurisdiction to hear habeas petitions

— whether initially or on appeal

— only pursuant to federal law (28 U.S.C. §§ 2241, 2254). Because federal law (28 U.S.C. § 2253) requires that a certificate of appealability issue before the C ourt of Appeals may consider a h abeas petition, dismissal of this appeal is required.
I Pursuant to the Revised Organic Act of 1954 , the District Court, with limited exceptions, exercised general jurisdiction over all causes of action au thorized by local law, and its federal jurisdiction was strictly limited to hearing cases arising under the Constitution, treaties, and laws of the United States. See A ct of July 22, 1954, ch. 558, § 22, 68 Stat. 497; see also Callwood v. Enos , 230 F.3d 6 27, 630 (3d Cir. 2000) (explaining history); Carty v. Beech Aircraft Corp. , 679 F.2d 1051, 1057 (3d Cir. 1982) , superseded in part by statute , 48 U.S.C. § 1612 (explaining that the District Court acted “more like a state court of general jurisdiction than a United States district court ” ). In this era, the District Court “ heard the majority of cases brought in the Virgin Islands, whether they were brought under federal or local law, civil law or criminal law.” Callwood , 230 F.3d at 630 (citing Carty , 679 F .2d at 1057). Its jurisdiction included habeas petitions, which the District Court heard pursuant to local law, 5 V.I.C. § 1303 ,2

which provides: “The writ of habeas corpus may be granted by the district court, upon petition by or on behalf of any person r estrained of his liberty.” In 1984, Congress rewrote the jurisdictional provisio ns of the Revised Organic
Act. See Act of Oct. 5, 1984, Pub. L. No. 98

- 454, 98 Stat. 1732. It expanded the federal jur isdiction of the District Court to make it coextensive with Uni ted States District
Courts

. See 48 U.S.C. § 1612(a); Callwood , 230 F.3d at 631. At the same time, Congress empowered the Virgin Islands legislature to vest jurisdiction over local actions exclusively in the local courts. See 48 U.S.C. § 1612(b) ; Callwood , 230 F.3d at 631. T he Virgin Islands legislature did just that in 1990 , vesting jurisdiction over all local civil actions in the Superior Court as of October 1, 1991

. See 4 V.I.C. § 76(a); Callwood , 230 F.3d at 631. In a trilogy of cases dec ided October 13, 2000 , we explain ed the impact of these jurisdictional changes on the relationship between the local courts and the District Court relative to the adjudication of habeas petitions. See Callwood v. Enos , 230 F.3d 627 (3d Cir. 2000); Parrott v. Gov’t of Virgin Islands , 230 F.3d 615 (3d Cir. 2000); Walker v. Gov’t of Virgin Islands , 230 F.3d 82 (3d Cir. 2000).
In Callwood , we considered whether the District Court could continue to exercise habeas jurisdiction pursuant to local law over petit ions filed by prisoners convicted of
local crimes

. See 230 F.3d at 631

– 32. Because the newly enacted 4 V.I.C. § 76(a) vested jurisdiction over all civil actions in the local courts, we held that “the District Court of the Virgin Islands was divested of j urisdiction to consider petitions for writs of habeas corpus under territorial habeas corpus law. . . . [T]o the extent that [5 V.I.C.] § 1303 vests3

jurisdiction in the District Court over a habeas corpus action brought under that section, it . . . has bee n repealed.” Id. at 632. In Parrott , we made clear that such habeas petitions must be brought in the Superior Court, even if the petitioner had been convicted of a local crime in the District Court at a time when it exercised general jurisdiction. 230 F .3d at
624. 1
In Walker , we considered whether the District Court could nonetheless exercise jurisdiction pursuant to federal habeas law over petitions fil ed by prisoners who had violated local law. See 230 F.3d at 85

– 87. Citing Callwood , we found that “the District Court properly held that it was without jurisdiction to grant Walker relief under § 1303.” Id. at 85. However, after examining the amendments to the Revised Organic Act enacted in 1984, we held that the District Court could exercise jurisdi ction over habeas corpus petitions from those in custody on account of Superior Court judgments pursuant to federal habea s law, specifically 28 U.S.C. § 2254. Id. at 87. We based this holding, in part, on the fact that Congress expanded the jurisdiction of the District Court of the Virgin Islands to make it coextensive with United States District Courts, and that Congress “specifically provided that, with respect to the granting of writs of habeas corpus, the relationship between the District Court of the Virgin Islands and the [Superior] Court shall be equivalent to that of the district courts of the United States and the courts of the several States.” Id. ; see also 48 U.S.C. § 1612(a) (vesting expanded

1 Prisoners convicted of federal crimes in the District Court may challenge their convictions direc tly in the District Court under 28 U.S.C. § 2255 , as would any prisoner convicted of a federal crime in a district court of the United States. George v. Sively , 254 F.3d 438, 441 (3d Cir. 2001).4

federal jurisdiction); id. § 1613 (clarifying the r elationship between the District Court of the Virgin Islands and the local courts). Having found that jurisdiction in the District
Court was proper under § 2254, we dismissed the appeal for lack of appellate jurisdiction because the petitioner had not bee n granted a certificate of appealability, as required by 28 U.S.C. § 2253(c). See Walker , 230 F.3d at 89

– 90

. Relying on Walker , w e also found in Callwood that the District Court had jurisdiction under federal habeas law over petitions attacking local pa role proceedings. Callwood , 230 F.3d at 632

– 33. Citing Walker ’s discussion of the jurisdictional changes to the Revised Organic Act made by Congress in 1984, “we conclude[d] that although the District Court of the Virgin Islands does not have jurisdictio n o ver Callwood’s petition under § 1303, . . . it does have jurisdiction under 28 U.S.C. § 2241.” Id. at 633 (footnote omitted). Because Callwood had n ot exhausted his local remedies as required under federal habeas law, we dismissed his petition without prejudice to his ability to “refil[e] his challenge under § 2241 after exhaustion.” Id. at 634.
II Applying the aforementioned principles to this appeal, certain conclusions are apparent. H ad Hughley’s habeas petition been filed initially in the Distri ct Court invoking 5 V.I.C. § 130 3 as its jurisdictional basis, Callwood , Parrott , and Walker would
mandate dismissal. E.g. , Callwood , 230 F.3d a t 632. Likewise, had Hughley exhausted lo cal remedies by filing a § 1303 petition in the Superior Court and th en filed a separate habeas petition in the District Court, as a state prisoner in one of the fifty states would do, the District Court could hear the case under 28 U.S.C. § 2254

. Walker , 230 F.3d at 87.5

Thereafter, a certificate of appealability under 28 U.S.C. § 2253(c) would be required before we could hear any appeal. Id. at 89.
T he majority distinguishes Hughley’s case from either of these two scenarios because his petition was first filed in the Superior Court under 5 V.I.C. § 1303 and the
Distric t Court heard the case in its appellate capacity under 48 U.S.C. § 1613a(a). 2 See Maj. Typescript at 5

. I find the majority’s distinction in conflict with the relevant trilogy. To be sure, both Walker and Callwood dealt with habeas petitions that had b een filed directly in the District Court under § 1303 , whereas here the District Court considered Hughley’s § 1303 habeas petition on appeal from the Superior Court via § 1613a(a) . But this distinction makes no difference because the underlying ability of the District Court to grant habeas relief is still grounded in local law

— § 1613a(a) gives the District Court the power only to hear the appeal; § 1303 provides the substantive b asis for habeas relief. U nder the majority’s analysis, the District Court wou ld be empowered to grant a habeas petition under § 1303. But Callwood held that the District Court has no power to grant relief under § 1303. See Callwood , 230 F.3d at 632 ; see also Walker , 230 F.3d at 85 (“[T]he District Court properly held that it was without jurisdiction to grant Walker relief under § 1303.”) . Indeed, Callwood made no distinction between the District Court acting in its appellate capacity or hearing a habeas petition as a quasi
territorial court under § 1303. Rather, w e st ated unequi vocally that “to the extent that

2 In the 1984 amendments to the Revised Organic Act, Congr ess provided that until the Virgin Islands legislature established an appellate court, the District Court would exercise appellate jurisdiction over the decisions of the local courts. See Act of Oct. 5, 1984, Pub. L. No. 98

- 454, § 704, 98 Stat. 1732 (codi fied at 48 U.S.C. § 1613a).6

§ 1303 vests jurisdiction in the District Court over a habeas corpus action brought under that section, it . . . h as been repealed,” and also “that the District Court of the Virgin Islands does not have jurisdiction under § 1303 over petitions filed under that section after October 1, 1991.” 230 F.3d at 632. Furthermore, if § 1613a(a) granted the District Court jurisdiction over habeas actions brought under § 1303, there would have been no need for Walker and Callwood

to hold that jurisdiction was proper under § 2254 and § 2241, respectively. Walker , 230 F.3d at 85, 87; Callwood , 230 F.3d at 632

– 33. Instead, the petitioner s in both cases could have gone to the Superior Court under § 1303 and then appeal ed to the District Court. Likewise, Callwood ’s statement that the petition er could refile his habeas petition under § 2241 in the District Court af ter he exhausted local remedies, 230 F.3d at 634, would have been unnecessary

— the petitioner could have appeal ed the Superior Court decision without any need to invoke § 2241. These principles are reinforced by the fact that in
Parrott , we required petitioners convicted of local crimes to file habeas petitions in the Superior Court. 230 F.3d at 624. I f the majority’s view were correct, pe titioners never would have to invoke § 2254 or § 2241 to obtain review in the District Court, a result which cannot be squared with Walker and Callwood

. 3

3 This is not to say, of course, that the District Court is deprived of jurisdiction to hear habeas appeals. Rather, the District Court may hear habeas appeals pursuant to § 2254 or § 2241. The oddity that this seems to impl icate is only temporary; now that the Virgin Islands Supreme Court has been established, the District Court will soon be without any appellate jurisdiction once its last appellate case is closed. See 48 U.S.C. § 1613a(d). Thereafter, cases like Hughley’s will be subject to review in th e District Court only through § 2254.7 III In sum, t he statutory framework, as interpreted by Walker , Callwood , and Parrott ,

ma ndates the following procedure. A petitioner

— like Hughley

— who collaterally attacks his local law conviction must file a habeas petition under 5 V.I.C. § 1303 in the Superior
Court. Parrott , 230 F.3d at 624. Thereafter, he can obtain review in the Distri c t Court pursuant to 28 U.S.C. § 2254 or 28 U.S.C. § 2241. Callwood , 230 F.3d at 234; Walker , 230 F.3d at 87. If a petitioner wishes to appeal to the Third Circuit, he must comply with the certificate of appealability requirement imposed by 28 U.S.C. § 2 253

. Walker , 230 F.3d at 89. My reading of the statutory framework is buttressed by my confidence that Congress could not have intended to give preferential treatment to prisoners in the Virgin
Islands over prisoners in the fifty S tates. I n enacting th e amendments to the Revised Organic Act in 1984, Congress “specifically provided that, with respect to the granting of writs of habeas corpus, the relationship between the District Court of the Virgin Islands and the [Superior] Court shall be equivalent to that of the district courts of the United States and the courts of the several States.” Walker , 230 F.3d at 87 ; see also 48 U.S.C. § 1613

. And by enacting the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) with its certificate of appealab ility requirement , “Congress confirmed the necessity and the requirement of differential treatment for those appeals deser ving of attention from those that plainly do not.” Miller

- El v. Cockrell , 537 U.S. 322, 337 (2003). The majority’s reasoning ev iscer ates both of these principles by enabling prisoners convicted of Virgin Islands crimes to obtain review in our Court as of right8

while prisoners in the fifty S tates must satisfy the onerous gatekeeping requirements of AEDPA. By doing so, the majority guar antees that this Court will hear all habeas appeals filed by Virgin Islands prisoners, not just the ones “deserving of attention.” I respectfully dissent.