2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-30-2009

Maurice Price v. Wynder

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1659

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Recommended Citation

"Maurice Price v. Wynder" (2009). 2009 Decisions. Paper 350.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 08-1659

____________

MAURICE M. PRICE, 

 Appellant

v.

JAMES W. WYNDER; 

DISTRICT ATTORNEY OF BERKS COUNTY; 

ATTORNEY GENERAL OF PA,

 Appellee

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 07-cv-00972)

District Judge: Honorable Stewart Dalzell

____________

Submitted Under Third Circuit LAR 34.1(a)

October 29, 2009

Before: SLOVITER, FUENTES, and HARDIMAN, Circuit Judges.

(Filed: October 30, 2009 )

____________

OPINION OF THE COURT

____________
2

HARDIMAN, Circuit Judge.

Maurice Price appeals the judgment of the District Court denying his petition for

writ of habeas corpus. We will affirm.

I.

Because we write for the parties, we review only the essential facts. 

In 2003, a state court jury convicted Price of several offenses arising from the

beatings and robbery of Chris Marcano and his father. The Marcanos were attacked near

their restaurant in Reading, Pennsylvania by four men, two of whom attempted to drag

Chris into a waiting vehicle before making off with a bag containing checks and currency. 

At trial, Chris identified two of the assailants as Price and Paul Simmons. In addition, an

informant named Kevin Martin testified that Price confessed to the crime while in jail. 

Contrary to the testimony of Chris Marcano and Kevin Martin, Simmons and another

witness testified that Price was not present when the beatings and robbery occurred.

Price was represented at trial by Richard Harris. After Price was convicted, Harris

committed a procedural default by failing to file a timely Concise Statement of Matters

Complained of on Appeal as required by Pennsylvania Rule of Appellate Procedure

1925(b). Accordingly, the Pennsylvania Superior Court affirmed Price’s conviction.

Price filed a pro se habeas petition pursuant to Pennsylvania’s Post-Conviction

Relief Act, 42 Pa. C.S. § 9451, et seq. Attorney Rebecca Bell was subsequently

appointed to represent Price in his state habeas proceedings and filed an amended petition
 Terica Martin is unrelated to the jailhouse informant, Kevin Martin. 1

 The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 2254(a) 2

and we have appellate jurisdiction pursuant to 28 U.S.C. § 2253.

3

alleging six grounds of ineffective assistance by Price’s trial counsel (Harris). The PCRA

court held a hearing at which Price, Harris, and Terica Martin—a potential alibi witness

whom Harris elected not to call at trial—testified. The PCRA court rejected Price’s 1

ineffective assistance claims and dismissed his petition. Price appealed to the Superior

Court, adding two new grounds of ineffective assistance of appellate counsel, but was

unsuccessful.

Price next filed a pro se habeas petition in federal court, in which he alleged eight

grounds of ineffective assistance of trial and appellate counsel. In February 2008, five

years after Price was convicted, the District Court adopted a Magistrate Judge’s Report

and Recommendation that Price’s habeas petition should be denied. Price appealed and

we granted a certificate of appealability on the following two issues: whether trial counsel

was ineffective for (1) failing to call potential alibi witness Terica Martin, or (2) failing to

object to the inculpatory testimony of jailhouse informant Kevin Martin. 2

II.

Price’s appeal is governed by the deferential standards of the Anti-Terrorism and

Effective Death Penalty Act of 1996 (AEDPA).

Under AEDPA, a state prisoner’s habeas petition must be denied as to any

claim that was ‘adjudicated on the merits in State court proceedings’ unless

the adjudication ‘was contrary to, or involved an unreasonable application
4

of, clearly established Federal law, as determined by the Supreme Court of

the United States’ or ‘was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.’”

Abu-Jamal v. Horn, 520 F.3d 272, 278-79 (3d Cir. 2008) (quoting 28 U.S.C.

§§ 2254(d)(1) and (2)). “Under the ‘unreasonable application’ prong of § 2254(d)(1),

‘the question . . . is not whether a federal court believes the state court’s determination

was incorrect but whether that determination was unreasonable – a substantially higher

threshold.’” Id. (quoting Schriro v. Landrigan, 127 S. Ct. 1933, 1939 (2007)). 

Accordingly, we are “not authorized to grant habeas corpus relief simply because we

disagree with the state court’s decision or because we would have reached a different

result if left to our own devices.” Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000). 

We may grant habeas relief to a state prisoner only if “the state court decision, evaluated

objectively and on the merits, resulted in an outcome that cannot reasonably be justified

under existing Supreme Court precedent.” Id. (quoting Matteo v. Superintendent, SCI

Albion, 171 F.3d 877, 890 (3d Cir. 1999)).

Price argues that the PCRA court’s ruling constitutes an unreasonable application

of Strickland v. Washington, 466 U.S. 668 (1984), and its progeny. To establish that he

has been denied effective assistance of counsel, Price must show that Harris “made errors

so serious that he was not functioning as the ‘counsel’ guaranteed by the Sixth

Amendment.” Id. at 687. Price faces an uphill battle because “[j]udicial scrutiny of
5

counsel’s performance must be highly deferential.” Id. at 689. As the Supreme Court

explained in Strickland:

It is all too tempting for a defendant to second-guess counsel’s assistance

after conviction or adverse sentence, and it is all too easy for a court,

examining counsel’s defense after it has proved unsuccessful, to conclude

that a particular act or omission of counsel was unreasonable. A fair

assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct

from counsel’s perspective at the time. Because of the difficulties inherent

in making the evaluation, a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under

the circumstances, the challenged action might be considered sound trial

strategy.

Id. (internal citation and quotation omitted).

The question in this appeal is whether the acts or omissions identified by Price

“were outside the wide range of professionally competent assistance.” Id. at 690. 

“[S]trategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable; and strategic choices made after less than

complete investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” Id. at 690-91. Our concern is not

whether counsel should have followed a particular course of action suggested in

hindsight, but “whether the investigation supporting counsel’s decision . . . was itself

reasonable.” Wiggins v. Smith, 539 U.S. 510, 523 (2003) (emphasis in original). 

“Reasonableness in this context is assessed by looking to ‘[p]revailing norms of practice
6

as reflected in [the] American Bar Association standards,’” Outten v. Kearney, 464 F.3d

401, 417 (3d Cir. 2006) (quoting Strickland, 466 U.S. at 688), “applying a heavy measure

of deference to counsel’s judgments,” Strickland, 466 U.S. at 691. Moreover, “[t]he

reasonableness of counsel’s actions may be determined or substantially influenced by the

defendant’s own statements or actions.” Id.

A.

With the aforementioned standards in mind, we first consider Harris’s decision not

to call Terica Martin—the mother of Price’s children and his girlfriend at the time—as an

alibi witness. Harris told the PCRA court that Terica was willing to testify that Price was

at home with her when the Marcanos were attacked. However, “[a]fter meeting with

Miss Martin, [Harris] determined that . . . the alibi information she would have provided

was not reliable.” App. 290. Harris explained that Price’s defense was that he did not

participate in the crime, not that he was not present at the scene, and that in light of

Terica’s lack of credibility “there wasn’t any sufficient or corroborative evidence of

where [Price] was, what he was doing, and who he was doing it with.” App. 291. 

According to Harris, his typical practice was not to “call alibi witnesses unless they have

something corroborative, meaning something independent to demonstrate that they were

with that person, and [Price] had nothing” to corroborate Terica’s alibi. App. 144. “It

wasn’t my trial strategy,” Harris testified, “to put on a witness . . . that I thought was not

reliable and [who] wouldn’t have helped [Price’s] case.” Id.
7

The PCRA court found that Harris was not ineffective for failing to call Terica

because his “testimony [was] credible in that his decision . . . was part of a valid trial

strategy.” App. 144. The District Court found “no basis for a finding that the state

court’s analysis was an unreasonable application of federal law and . . . agree[d] . . . that

Strickland compels a finding that counsel’s decision did not rise to the level of ineffective

assistance.” App. 5.

The essence of Price’s argument on this issue is as follows:

The factual findings of the state court and the District Court were wrong. 

Terica Martin’s alibi testimony would have corroborated the trial testimony

of two eyewitnesses who testified that the appellant was not present when

the assault took place. This is clear and convincing evidence that the

factual findings of both state trial and appellate courts are incorrect pursuant

to 28 U.S.C. § 2254(e)(1).

Price Br. 32-33.

Price does not explain which factual findings were wrong. To the extent he claims

that the state court erred in holding that Terica Martin’s testimony would have been

unhelpful, Price has failed to identify the proper factual finding. The state court found, as

a matter of fact, that Harris testified credibly that his decision not to call Terica Martin

was part of a valid trial strategy. We agree with the District Court that this was not “an

unreasonable determination of the facts in light of the evidence presented” under

AEDPA’s deferential standard of review. §2254(d)(2).

With respect to the PCRA court’s application of federal law, Strickland mandates

deference to tactical decisions made by trial attorneys and AEDPA mandates deference to
8

state court decisions interpreting Strickland. It was reasonable for the PCRA court to

conclude that Strickland affords counsel discretion to make adverse credibility

determinations about potential witnesses notwithstanding the fact that their testimony

might be helpful in certain respects. Price cites no “clearly established” Supreme Court

precedent (or any precedent for that matter) to suggest otherwise.

B.

We next turn to Harris’s failure to object to Kevin Martin’s testimony that, while

incarcerated awaiting trial, Price confessed to “pistol whipp[ing] Chris Marcano and his

pop.” App. 203. Kevin Martin also testified that Price’s co-Defendant Simmons told him

the incident “was supposed to be simply a robbery, just turned out to be more than what it

was supposed to be.” Id. On cross-examination Harris attacked Kevin Martin’s

credibility by emphasizing his criminal record and suggesting that his testimony was

motivated by the promise of a lenient sentence. App. 204-05.

Price claims that “counsel’s failure to investigate a witness who was a career

criminal convicted of federal offenses and awaiting sentence did not meet standards of

‘reasonable professional judgment.’” Price Br. at 38. This provides little guidance, but

given several passing references to Kevin Martin as a “jailhouse informant” and to

Harris’s “failure to object” to his testimony, we construe Price’s argument to be that

Kevin Martin’s testimony was excludable because he was acting as a Government agent
 “[T]he Sixth Amendment is violated when the State obtains incriminating 3

statements by knowingly circumventing the accused’s right to have counsel present in a

confrontation between the accused and a state agent.” Moulton, 474 U.S. at 176. 

Although Price does not mention Moulton, Massiah, or the Sixth Amendment on appeal,

the PCRA court analyzed Price’s claim under this framework and it is the only plausible

basis we can surmise for suppressing Kevin Martin’s testimony.

9

in violation of Price’s Sixth Amendment right to counsel. See Maine v. Moulton, 474

U.S. 159 (1985); Massiah v. United States, 377 U.S. 201 (1964). 3

The reasonableness of Harris’s decision not to seek to exclude Kevin Martin’s 

testimony turns on what Harris knew at the time. See Strickland, 466 U.S. at 689. The

record is somewhat ambiguous on this point. At the PCRA hearing, Price testified that

his only contact with Kevin Martin was in November 2002 when Martin approached Price

in jail claiming that he was sent by a United States Attorney. Price produced a letter

dated November 7 in which he informed Harris that he had been solicited for information

about his case by a federal informant. The letter did not identify Kevin Martin by name,

however. Price further testified that Harris told him shortly before trial in January 2003

that Kevin Martin’s name was on the witness list, and that Price responded: “That’s the

same guy that I wrote you and told you about.” App. 273.

Harris testified that he did not remember receiving the November 7 letter, but that

at some point before the trial Price informed him Kevin Martin was cooperating with the

Government. However, Harris claims he had no reason to suspect that Kevin Martin was

acting on Government orders to elicit information from Price in a manner circumventing

Price’s right to counsel. In fact, Kevin Martin’s trial testimony seems to suggest that he
10

was solicited by the Government only after Price’s purported confession. See App. 206

Even more significantly, Harris testified that when he informed Price shortly before trial

that Kevin was on the Commonwealth’s witness list, Price responded that “he hadn’t

spoken to [Kevin] and that anything that [Kevin] would have been saying as it relates to

his testimony would have been a lie.” App. 286.

Harris explained that he did not file a motion to suppress Kevin’s testimony

because he “didn’t have enough information to deem that motion to be appropriate.” 

App. 288. Specifically, “the Commonwealth had not provided [Harris] with information

regarding [Kevin] being a federal informant.” Id. “If the Commonwealth had [such]

information, certainly that would have been information under Brady that should have

been turned over.” App. 289. “If they had that information in their possession,” Harris

told the PCRA court, “I would presume they would have turned [it] over.” Id.

Furthermore, Harris “had a discussion with the prosecutor . . . and he did not inform me

that . . . [Kevin] was . . . what the law would consider a federal informant [under

Massiah].” Id.

The PCRA court found that “Harris’s failure to file any motions [was] part of a

valid trial strategy.” App. 151. Although the decision whether or not to file a motion to

suppress evidence may be strategic in some cases, the question here is whether Harris’s

decision in this regard was made following reasonable investigation. 466 U.S. at 690-91. 

See also Wiggins, 539 U.S. at 523.
11

We first note that the record does not clearly indicate what Harris knew or when he

knew it. If Harris was informed that Kevin approached Price claiming to be “sent by”

prosecutors, “prevailing norms of practice” would dictate a more extensive investigation

into a potential Massiah violation than if Harris was merely aware that Kevin was

cooperating generally with the Government. See Strickland, 466 U.S. at 688. Because

the testimony adduced at the PCRA hearing was equivocal on this point, we cannot say

that it was unreasonable under § 2254(d)(2) for the PCRA court to conclude that Harris

had no firm basis to believe a Massiah violation had occurred. Therefore, the District

Court properly rejected Price’s ineffective assistance claim with respect to Kevin

Martin’s testimony.

For the foregoing reasons we will affirm the judgment of the District Court.