Thomas Affinito v. Roy Hendricks

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-2066
THOMAS AFFINITO,
Appellant
v.
ROY HENDRICKS; ATTORNEY
GENERAL OF THE STATE
OF NEW JERSEY
On Appeal from the
United States District Court
for the District of New Jersey
D.C. Civil Action No. 99-cv-02560
(Honorable Joseph A. Greenaway, Jr.)
Argued July 28, 2003
Before: SCIRICA, Chief Judge,
RENDELL and AMBRO, Circuit Judges
(Opinion filed: May 4, 2004)
Jean D. Barrett, Esquire (Argued)
Ruhnke & Barrett
47 Park Street
Montclair, NJ 07042
Attorney for Appellant
Peter C. Harvey
Attorney General of New Jersey
Nancy A. Hulett (Argued)
Deputy Attorney General
P.O. Box 086
Office of Attorney General of New
Jersey
Department of Law & Public Safety
Division of Criminal Justice
Appellate Bureau
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Attorneys for Appellee
OPINION OF THE COURT
AM BRO, Circuit Judge
Thomas Affinito was convicted in
1998 of murder and kidnapping in New
Jersey state court. After exhausting his
state court remedies, Affinito petitioned
for a writ of habeas corpus in the United
States District Court for the District of
New Jersey. The District Court denied
Affinito’s petition, but granted a
certificate of appealability as to whether
Affinito received ineffective assistance of
counsel at his trial. While we conclude
that Affinito’s counsel failed to provide
effective assistance, that failure was not
sufficiently prejudicial to warrant granting
a writ of habeas corpus.
I. Factual and Procedural
Background
On February 22, 1985, Affinito,
John Cupsie, and Michael Perez were
drinking at a bar called Stash’s Tavern in

-- 1 of 17 --

2
Carteret, New Jersey. What follows was
related primarily by Perez, who was an
eyewitness to what occurred throughout
that evening and the early morning hours
of February 23.
The three men were regular patrons
at Stash’s Tavern and had met one another
there. It appears, though, that they neither
were good friends nor had they known
each other very long. On the evening in
question, they had been at Stash’s for
several hours and eventually began talking
over a game of pool. They decided to
drive to another bar in Carteret called the
City Line. Cupsie drove. The three men
arrived just before last call and ordered
drinks. Almost immediately, Affinito and
Cupsie began arguing for some unknown
reason, but the two seemingly reconciled
their differences within a few minutes.
Shortly thereafter, Affinito and
Perez left Cupsie at the bar and walked
outside. Neither Affinito nor Perez
wanted to go home, and the suggestion
was made that they could drive around in
Cupsie’s car. The two checked the car
doors, but they were locked. Affinito then
stated he could give Cupsie a “sleeper
hold” (a wrestling term), render him
unconscious, and take his keys. Perez
expressed uncertainty in the plan, but
Affinito insisted he could knock Cupsie
out and do so without hurting him. Perez
acceded.
The two men soon rejoined Cupsie
inside, and he informed them of his desire
to go home. All three returned to Cupsie’s
car, and he drove to Affinito’s house.
Affinito was sitting in the back seat, as he
had on the car ride from Stash’s to City
Line. While parked outside his residence,
Affinito pulled out a pipe and asked
Cupsie if he wanted to smoke marijuana.
Cupsie responded in the affirmative.
Affinito, however, did not have any
marijuana. He pretended to put marijuana
in the pipe and told Cupsie to pass the
pipe to Perez. At this point, Affinito
grabbed Cupsie from behind and pulled
him into the back seat of the car. Cupsie
began struggling frantically, and the fight
spilled out of the car. During the course
of the fight, Affinito pinned Cupsie to the
ground and repeatedly punched his face
and head until he was bloodied and
unconscious. Affinito then said he had to
kill Cupsie and strangled him with a shirt
until he began foaming at the mouth.
With Perez’s help, Affinito put Cupsie in
the trunk of the car and drove to a nearby
junkyard.1
By the time Affinito arrived at the
junkyard, however, Cupsie had regained
consciousness. When Affinito opened the
trunk, Cupsie punched him in the face in
an attempt to fight his way out of the
trunk. He was unsuccessful. Affinito
again strangled Cupsie, this time killing
1 Perez testified that he told
Affinito to stop several times, thought
about running away, and did not wish to
assist in putting Cupsie’s body in the
trunk. But it appears Perez was either
frozen by fear, in partial shock, or both.
After Affinito cursed at him, Perez agreed
to help.

-- 2 of 17 --

3
him. After throwing Cupsie’s body on the
ground, Affinito drove the car from the
junkyard. He and Perez wiped the car of
fingerprints and abandoned it. Affinito
also threw the shirts used to strangle
Cupsie and clean the car into a sewer
catch basin. He returned to his home
around 4:30 a.m. on February 23.
After finding Cupsie’s body in the
junkyard later that day and conducting a
preliminary investigation, the police took
Affinito into custody. At police
headquarters, Affinito gave two
statements. In the first, he admitted
leaving the bars with Cupsie, but he
claimed that Cupsie dropped him off at
home around 4:00 a.m. In his second
statement, Affinito admitted that he killed
Cupsie. Affinito alleged, however, that he
attacked Cupsie only after Cupsie made
homosexual advances toward him.2
Larry Bronson, the counsel retained
by Affinito’s family, hired Stanley L.
Portnow, M.D., to perform a psychiatric
evaluation of Affinito. Portnow’s
evaluation of Affinito’s mental status at
the time of the incident was based on two
interviews with him, numerous sets of
medical and psychiatric records, and
police statements given by Affinito and
witnesses. Portnow concluded that
Affinito suffered from a major psychiatric
disorder that “substantially impaired his
ability to know or appreciate the nature
and quality of his acts or to know that they
were wrong.”
In 1987, John P. Russell was
substituted as Affinito’s defense counsel.3
Russell hired a different psychiatrist,
James Ferretti, M.D.4 Ferretti based his
2 As will become relevant later,
Affinito claims to suffer from auditory,
but not visual, hallucinations.
3 At Affinito’s Post Conviction
Relief Act (“PCRA”) hearing, Bronson
testified that he “felt uncomfortable trying
a death penalty case” and that his turning
the case over to Russell had nothing to do
with the fact his fee had not been paid in
full. Bronson highly recommended that
Affinito accept Russell as his new
counsel. At the PCRA hearing, Bronson
stated his belief that Russell was more
than capable because he had seen Russell
“spellbind juries with his skills.”
To bolster his argument about
Russell’s ineffectiveness, Affinito points
out that, prior to the 1988 trial, Russell
had committed several ethical violations.
Further, Russell was disbarred in 1990 for
a misappropriating funds from his trust
account in 1982. See Matter of Russell,
579 A.2d 1228 (N.J. 1990). Russell also
had been sanctioned twice prior to
Affinito’s trial for tampering with a
witness and failing to perfect an appeal.
See Matter of Russell, 282 A.2d 42 (N.J.
1971); Matter of Russell, 541 A.2d 665
(N.J. 1988).
4 There is no evidence why Russell
retained Ferretti, but it is alleged Portnow
refused to testify until the bill for his
evaluation of Affinito was paid.
Apparently neither Russell nor Bronson

-- 3 of 17 --

4
evaluation on a single, fifty-five minute
interview with Affinito. During this
interview, Ferretti relied on Affinito to
provide the facts of the crime. To
underscore his reliance, Ferretti provided
a disclaimer in his report that the
“opinions and diagnosis recommendations
and commentary contained in this report
are based on the assumption that the
patient has been reasonably accurate and
truthful in his narration. If this was not
the case, my opinions and diagnosis
conceivably could be altered.” While
Ferretti later reviewed Affinito’s medical
and psychiatric records, Russell never
provided Ferretti with Affinito’s post-
arrest statements to the police.
Affinito was ultimately charged
with: (1) purposeful or knowing murder,
N.J. Stat. Ann. § 2C:11-3(a)(1) and (2);
(2) first-degree kidnapping, N.J. Stat. Ann.
§ 2C:13-1(b)(1) and(2); and (3) felony
murder, N.J. Stat. Ann. § 2C:11-3(a)(3).
He stood trial in the New Jersey Superior
Court in September 1988.
At trial, Russell used Ferretti’s
testimony to present diminished capacity
and intoxication defenses. Ferretti opined
during direct examination that Affinito:
(1) was intoxicated the night of the
murder; (2) had a personality disorder of
the “epileptoid variety” which caused him
to have “difficulty with impulse control”;
and (3) had suffered permanent brain
tissue injury brought about by epilepsy
and past alcohol abuse, making him more
susceptible to the effects of intoxicants.
Ferretti concluded that such a “vulnerable
brain” – coupled with intoxication, the
described personality disorder and stress
from a fight – would result in a person
lacking the capacity to “knowingly and by
design perpetrate a murder.”
On cross-examination, Ferretti
testified that his opinion might change if
the facts were materially different from
those provided by Affinito. The
prosecution then questioned Ferretti
regarding Affinito’s altercation and
strangling of Cupsie in the junkyard.
(Ferretti was not even aware of these facts
because Affinito omitted mention of them
during their interview, and Russell had
failed both to mention them to Ferretti and
provide him with Affinito’s statements to
the police.) Ferretti responded that he
“would not apply diminished capacity at
that point because I would think [Affinito]
formulated intent.” Ferretti reiterated this
position on redirect, though with the
qualifying assumption that the additional
facts were true.
In its case in rebuttal, the State
called Dr. Irwin N. Perr as a psychological
expert. After reviewing medical records
a n d interviewing Affinito f o r
approximately three hours, Perr concluded
that Affinito was not an epileptic per se
and did not suffer from any type of brain
damage or cognitive disorder.
A jury convicted Affinito on all
counts. The purposeful or knowing
murder conviction was merged with the
felony murder conviction, for which
paid Portnow for his services.

-- 4 of 17 --

5
Affinito received a sentence of life
imprisonment with parole ineligibility
lasting thirty years. (He received a
consecutive sentence of twenty-five years
for the first degree kidnapping
conviction.)
In 1989 Affinito appealed his
convictions and sentences. In his brief to
the Appellate Division of the New Jersey
Superior Court, Affinito alleged the trial
court committed several errors, including
an improper jury charge regarding
diminished capacity (erroneously placing
on Affinito the burden of proving lack of
intent in establishing diminished capacity).
In February 1991 the Appellate Division
affirmed Affinito’s convictions and
sentences. Later that year, the Supreme
Court of New Jersey denied Affinito’s
petition for certification.
Nearly three years later Affinito
filed in the Superior Court a petition for
post-conviction relief under New Jersey’s
Post-Conviction Relief Act (“PCRA”),
N.J. Stat. Ann § 2A:67-16. In the petition
he alleged his trial counsel was ineffective
by not presenting a viable diminished
capacity defense. Specifically, Affinito
argued Russell failed to prepare Ferretti
properly. At the PCRA hearing, Affinito
offered the testimony of a criminal lawyer
as an expert. That expert opined that
Russell was ineffective because he failed
to provide, inter alia, Ferretti with a copy
of Affinito’s statements to the police, did
not require Ferretti to consult with
Portnow and called Ferretti as an expert
instead of the (presumably) more prepared
Portnow.
In early 1996 the Superior Court
denied Affinito’s request for relief,
concluding that he failed to sustain his
burden of proving ineffective assistance of
counsel. Significantly, the Court found
Russell’s choice of Ferretti was strategic
and that Affinito failed to prove whether
Portnow was available at the time of the
trial and prepared to testify. The Court
also found that Affinito failed to
demonstrate Portnow’s testimony would
have differed from Ferretti’s had Portnow
been called as Affinito’s expert.
Affinito appealed once more to the
Appellate Division of the Superior Court,
which affirmed for the same reasons.
Later that year, the New Jersey Supreme
Court, as it had done in the direct appeal
of Affinito’s convictions, denied his
request for certification.
Affinito then filed a petition
seeking a writ of habeas corpus in the
United States District Court for the
District of New Jersey. He argued that his
Sixth Amendment right to effective
assistance of counsel was violated for the
same reasons he asserted in the New
Jersey courts. As noted, the District Court
denied Affinito’s petition. We granted a
certificate of appealability on the issue of
whether Russell provided ineffective
assistance of counsel.5
II. Standard of Review
We exercise plenary review over
5 We have jurisdiction under 28
U.S.C. §§ 1291 and 2253(a).

-- 5 of 17 --

6
the District Court’s decision denying
Affinito’s habeas petition. Stevens v.
Del. Corr. Ctr., 295 F.3d 361, 368 (3d Cir.
2002). Overlaying our review standard,
however, is the Antiterrorism and
Effective Death Penalty Act of 1996
(“AEDPA”). For matters of fact, a federal
court reviewing a habeas petition must
“presume that the . . . 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.” Id. (citing 28
U.S.C. § 2254(e)(1)); see also Williams v.
Taylor, 529 U.S. 362, 402-13 (2000).
As for legal conclusions, Williams
instructs that a federal court may only
grant habeas relief if the state adjudication
“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.” Williams, 529 U.S.
at 402-03 (quoting 28 U.S.C. §
2254(d)(2)); see also Werts v. Vaughn,
228 F.3d 178, 196 (3d Cir. 2000). Under
AEDPA, “we must first identify the
applicable Supreme Court precedent and
determine whether it resolves the
petitioner’s claim.” Werts, 228 F.3d at 197
(citing Matteo v. Superintendent, SCI
Albion, 171 F.3d 877, 888 (3d Cir. 1999)).
A decision is “contrary to” clearly
established federal law “if the state court
arrives at a conclusion opposite to that
reached by [the Supreme] Court on a
question of law or if the state court
decides a case differently than [the
Supreme] Court has on a set of materially
indistinguishable facts.” Williams, 529
U.S. at 413; see also Werts, 228 F.3d 196.
Further, “it is not sufficient for the
petitioner to show merely that his
interpretation of Supreme Court precedent
is more plausible than the state court’s;
rather, the petitioner must demonstrate that
Supreme Court precedent requires the
contrary outcome.” Werts, 228 F.3d at 197
(quoting Matteo, 171 F.3d at 888).
“If we determine that the state court
decision is not ‘contrary to’ the applicable
Supreme Court precedent, then we are
required to advance to the second step in
the analysis — whether the state court
decision was based on an ‘unreasonable
application of’ Supreme Court precedent.”
Id. (citing Matteo, 171 F.3d at 888). Here,
“a federal habeas court [may] grant the
writ if the state court identifies the correct
governing legal principle from [the
Supreme] Court’s decision but
unreasonably applies that principle to the
facts of the prisoner’s case.” Williams,
529 U.S. at 413. In this inquiry, “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, 228 F.3d at 197
(citing Matteo, 171 F.3d at 889); see also
Williams 529 U.S. at 411. Rather, the state
court’s application of Supreme Court
precedent must have been “objectively
unreasonable.” Werts, 228 F.3d at 197
(citations omitted). In other words, a
“federal habeas court should not grant the
petition unless the state court decision,
evaluated objectively and on the merits,

-- 6 of 17 --

7
resulted in an outcome that cannot
reasonably be justified under existing
Supreme Court precedent.” Id.
III. Affinito’s Ineffective Assistance of
Counsel Claim
Affinito alleges a violation of his
Sixth Amendment right to effective
assistance of counsel. Although a number
of issues are raised, Affinito essentially
argues that Russell provided ineffective
assistance because he decided to use
Ferretti as the defense expert witness
rather than Portnow and failed to provide
Ferretti with all relevant discovery
documents. We conclude that Russell’s
performance was deficient. Nonetheless,
this does not require a contrary outcome,
even in the face of an erroneous jury
instruction relating to diminished capacity.
A. Ineffective Assistance of Counsel
Standard
The Sixth Amendment right to
effective assistance of counsel is not
intended “to improve the quality of legal
representation, although that is a goal of
considerable importance to the legal
system. The purpose is simply to ensure
that criminal defendants receive a fair
trial.” Strickland v. Washington, 466 U.S.
668, 689 (1984). In Strickland, the
Supreme Court established a two-prong
test to determine when a defense counsel’s
representation was so inadequate as to
warrant reversal of a conviction.
A defendant first must establish his
c o u n s e l ’ s r e p r e s e n t a t i o n w a s
constitutionally deficient. Id. at 687. This
standard is met if counsel’s performance
“fell below an objective standard of
reasonableness.” Id. at 688. Judicial
scrutiny in this regard, however, is highly
deferential. Id. at 689.
It is all too tempting for a
defendant to second-guess
counsel’s assistance after
conviction or advers e
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
r e c o n s t r u c t t h e
circumstances of counsel’s
challenged conduct, and to
evaluate the conduct from
counsel’s perspective at the
time.
Id. (internal citation omitted). Therefore,
a court “must indulge a strong
presumption that counsel’s conduct falls
within the wide range of reasonable
professional assistance.” Id.
The second Strickland prong is
reached only when the first exists. If so, a
defendant must demonstrate a “reasonable
probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different.”

-- 7 of 17 --

8
Id. at 694. In adopting this standard, the
Strickland Court determined that a
defendant must show more than “that the
errors had some conceivable effect on the
outcome of the proceeding.” Id. at 693.
While a defendant need not show the error
“more likely than not altered the outcome
in the case,” id. at 693, it nonetheless must
be “sufficient to undermine confidence in
the outcome.” Id. at 694.
B. Application of the Strickland
Standard
Affinito argues the District Court
erred in concluding that the New Jersey
Courts reasonably applied Strickland. As
stated previously, each individual
argument derives from Russell’s decision
to use Ferretti as an expert witness and
failure to provide him with all relevant
discovery documents. First, Affinito
alleges Ferretti was not qualified to testify
in support of a diminished capacity
defense and that Portnow’s prior
evaluation should not have been ignored.
Affinito also claims it was unreasonable to
have Ferretti testify when he had spent
only fifty-five minutes interviewing
Affinito, reviewed “no documents,”
including Affinito’s “medical and mental
health history,” and supported his
testimony with the unknown diagnosis of
“vulnerable brain.” Finally, Affinito
contends that Russell’s failure to provide
Ferretti with Affinito’s statements to
police fell below any objective standard of
reasonableness.
1) Was the Performance of Affinito’s
Counsel Constitutionally Deficient?
At the outset, we are unpersuaded
that Ferretti was inherently unqualified as
an expert witness or that hiring him was
unreasonable. Strickland provides that
counsel has wide latitude in making
strategic and tactical decisions. 466 U.S.
at 669. Determining which psychiatric
expert to consult is such a decision, be it
strategic or tactical.6 See United States v.
Kirsh, 54 F.3d 1062, 1072 (2d Cir. 1995).
In order to circumvent the
teachings of Strickland, Affinito attempts
to paint Ferretti as incompetent by
isolating a single statement from his direct
testimony. Answering a question on
Affinito’s mental capacity, Ferretti stated
that Affinito “was not acting with mature
decision-making capacity and good
judgment, [and] therefore had diminished
capacity.” Affinito claims this
demonstrates Ferretti lacked an
understanding of the legal definition of
diminished capacity — a mental disease or
defect that negates the relevant state of
6 Affinito argues that, because
Portnow refused to testify until he was
paid, the decision to retain Ferretti was a
financial, not strategic, one. Regardless
whether financial considerations played
some part in Russell’s decision, his choice
remained a strategic one. (Affinito uses
“strategic” throughout his briefing, though
one could argue that the decision to use
Ferretti, as opposed to Portnow, was a
tactical means of carrying out the strategy
of rebutting the prosecution’s case. In this
c o n t e x t , w e u s e t h e w o r d s
interchangeably.)

-- 8 of 17 --

9
mind required for an offense (here intent).
See N.J. Stat. Ann. § 2C:4-2; State v.
Galloway, 628 A.2d 735, 743 (N.J. 1993).
But in answering the very next
question, Ferretti stated that — in light of
Affinito’s medical history, his intoxication
at the time of the crime and the stress of a
fight — Affinito lacked the capacity “to
knowingly and by design perpetrate a
murder.” This demonstrates Ferretti did
understand the diminished capacity
defense. In fact, Ferretti’s uncontroverted
testimony establishes him as an expert
qualified in the field of psychiatry who has
testified in “several hundred” court cases.
In this context, retaining him was
reasonable.
In addition, Ferretti’s examination
of Affinito was sufficient based on the
record before us. One complaint of
Affinito’s is that Ferretti interviewed him
for only fifty-five minutes. While Ferretti
may have interviewed Affinito for a
shorter period of time than either Portnow
or the State’s psychiatric expert, Affinito
does not state why, or even if, a fifty-five
minute interview is insufficient or contrary
to professional standards. And as just
stated, Ferretti’s uncontroverted testimony
establishes him as a psychiatric expert.
While a short interview suggests the
possibility of a less than thorough
evaluation and an unprepared expert
witness, Affinito fails to make a
persuasive case that, even at this low
threshold, his counsel was ineffective.
As for whether Ferretti reviewed
any medical or personal documents,
Affinito’s claim of no review is incorrect.
Ferretti admitted that he had no written
background information at the time of his
examination. He testified, however, that
he reviewed “background material later
on, and that involves virtually every aspect
of [Affinito’s] life, medical history, work
history, legal history and family history.”
This background material, Ferretti opined,
supported his independent conclusions.
Further, selecting Ferretti to testify
was a reasonable tactical decision because
his and Portnow’s evaluations, while not
identical, are similar. Both noted Affinito
had seizures in the past and a personality
disorder that lowered his impulse control.
Both stated Affinito was an alcoholic and
long-time abuser of various drugs. Both
based their conclusions on the fact that, on
the night of the murder, Affinito was
suffering from a convulsive disorder, was
highly intoxicated and was attempting to
thwart a perceived homosexual advance
from Cupsie. In addition, Ferretti’s use of
the phrase “vulnerable brain” is not that
dissimilar from Portnow’s report
describing Affinito as a “congenitally
damaged individual” and a “central
nervous system damaged individual.” One
could take issue with Ferretti’s choice of
words, but this does not demonstrate that
Russell’s reliance on Ferretti’s expert
opinion was unreasonable.
We conclude, however, that
Russell’s failure to provide Ferretti with
Affinito’s statements to the police fell
below any constitutionally required
standard of reasonable representation.
Affinito’s statement to the police differed

-- 9 of 17 --

10
in several respects from the version of the
incident told to Ferretti. Specifically,
Affinito failed to mention the second
strangling at the junkyard. On cross-
examination, Ferretti was asked a series of
hypothetical questions to determine if his
diagnosis of diminished capacity would
change, including the following:
[I]f Affinito further threw
[the victim] in the trunk,
drove him several blocks
away from that location in a
deserted area, opened the
trunk and [the victim] was
still alive and tried to get
out of the trunk and Affinito
beat him and strangled him
and killed him at that spot,
how about those factors?
Unbeknownst to Ferretti, this hypothetical
mirrored the actual facts of the case.
Ferretti replied that, under those facts, he
“would not apply diminished capacity at
that point because I would think he
formulated intent.”
When the key issue in a criminal
case is whether the defendant suffered
from diminished capacity, we can think of
nothing more critical than ensuring that
the defense’s psychiatric expert has as
complete and accurate a description of the
facts and circumstances surrounding the
crime as possible. The decision not to
avail Ferretti of Affinito’s statements
defies logic. A defendant’s own
statements to the police have to be some of
the most, if at times not the most, crucial
documents with which an evaluating
mental health expert should be familiar. It
is almost inconceivable that Ferretti could
take the witness stand without knowing
Affinito engaged in a second struggle with
Cupsie at the junkyard and strangled him
again. This was not a trial tactic, it was
gross incompetence. Even assuming the
decision not to provide Ferretti these
statements was deliberate, it satisfies the
first prong of Strickland. See United
States v. Tucker, 716 F.2d 576, 586 (8th
Cir. 1983) (stating that some “defense
strategies may be so ill-chosen that they
m a y r e n d e r c o u n s e l ’ s o v e r al l
representation constitutionally deficient”).7
Any intimation to the contrary by the New
Jersey Courts is an unreasonable
application of Strickland.
2) Did Affinito Suffer Prejudice Because
of His Counsel’s Error?
Having concluded that Russell’s
failure to provide Affinito’s statements to
Ferretti was constitutionally deficient, we
examine whether this error satisfies the
second, or prejudice, prong of Strickland.
To constitute prejudice, Russell’s error
must undermine our confidence in the
outcome of the case. Strickland, 466 U.S.
at 694. Admittedly, this error (leading to
Ferretti’s reversal of opinion on cross-
examination) de facto prevented Affinito
7 All of this, of course, begs the
question of why Russell did not simply tell
Ferretti all the pertinent facts surrounding
Cupsie’s murder. This alone underscores
Russell’s lack of adequate assistance to
Affinito.

-- 10 of 17 --

11
from presenting any diminished capacity
defense.
In the New Jersey Courts and
before us, Affinito points to Portnow’s
evaluation, made with full knowledge of
the facts of the case, as strong evidence
supporting his diminished capacity defense
and undermining his conviction. In
response, the Appellate Division of the
Superior Court concluded on PCRA appeal
that, had Portnow been called to testify,
“his conclusion would have been subject
to a similarly damaging cross-examination
as was” Ferretti’s. Therefore, Affinito had
not demonstrated “a reasonable likelihood
that a different result would have been
reached.” Under AEDPA, it is not for us
to determine whether we agree with, or
would rule identically to, the New Jersey
Courts. Our only inquiry is whether their
application of Strickland was objectively
unreasonable. It was not, even assuming
that Portnow would have testified with full
knowledge of the facts and would not have
abandoned the diminished capacity
defense as Ferretti did.8
Portnow’s written report contained
many omissions and inconsistencies when
compared to Perez’s eyewitness testimony.
In Portnow’s report, Affinito is quoted as
stating that Perez took out a pipe, put
white powder into it, and smoked it. But
Perez testified Affinito had pulled out a
pipe and pretended to fill it with
marijuana. Affinito is also quoted as
saying that Cupsie started “to climb out of
his seat to get in the back with me.” Once
again, Perez testified that Affinito was
unprovoked and grabbed Cupsie unaware
from behind. Portnow’s report also fails to
address any of the specific facts that
provide the context for Cupsie’s death —
such as Affinito’s expressed desire to take
the car, his talk of being able to render
Cupsie unconscious with a sleeper hold,
lulling Cupsie into a vulnerable position
with the ruse of smoking marijuna, the
statement (when Cupsie was already
bloody and unconscious) that Cupsie had
to be killed, the decision to dispose of the
body in a junkyard, and the second
strangling upon discovering that Cupsie
was not, in fact, dead.
Unlike our dissenting colleague, we
b e l i e v e t h e s e o m i s s i o n s a n d
inconsistencies terminally undermine
A f f i n ito’s def ens e. F i r s t , t h e
8 We reject as unreasonable the
Appellate Division of the Superior Court’s
conclusion on direct appeal that “it must
be assumed that Dr. Portnow’s opinion is
not based upon a complete recitation of
the facts.” Portnow’s written report states
that Affinito’s and Perez’s statements to
the police were a source of information.
While it is certainly ironic that Portnow’s
report omitted mention of the effect of
those statements (and, as noted below,
cross-examination on this point would
have significantly discredited Portnow’s
testimony), it is unreasonable nonetheless
to assume Portnow had no knowledge of
the information contained in these
statements, or that he would have
abandoned his diminished capacity
diagnosis as Ferretti did.

-- 11 of 17 --

12
inconsistencies noted in the preceding
paragraph involve physical actions (who
did what), not Affinito’s alleged auditory
hallucinations (who said what). (Per
Portnow’s report, Affinitio “denies visual
hallucinations and paranoid ideation.”)
Further, Portnow premised his opinion on
Cupsie initiating the altercation, writing in
the “Conclusions” section of his report that
“Cupsie made a physical advance towards
Affinito which sparked off a seizure like
rage in Affinito.” But as just discussed,
Perez testified that Cupsie made no
physical advances in the car and was the
victim of an unprovoked attack. Because
Affinito admittedly was not suffering from
visual hallucinations, the lynchpin of
Portnow’s entire analysis is suspect. In
addition, Perez’s testimony is internally
consistent, painting the story of a joyriding
plan gone horribly wrong. Portnow’s
report makes little attempt to put the
events of the evening in context.
Affinito had the opportunity to call
Portnow, or another psychological expert,
to testify at the PCRA hearing, but failed
to do so (for whatever reason). In this
context, we will not speculate on the
outcome of th eoretical testimony,
especially when many of Affinito’s
arguments on appeal are based on the
supposed thoroughness and quality of
Portnow’s evaluation and report.9 Given
the overwhelmingly one-sided nature of
the evidence in this case and the failure of
Portnow’s report to address this evidence
adequately, Affinito has failed to meet his
demanding burden to demonstrate that the
PCRA Court unreasonably applied
Strickland.
C. Erroneous Jury Instruction
On direct appeal, the prosecution
conceded that Affinito was erroneously
required to prove diminished capacity by a
preponderance of the evidence, violating
his due process right to have the
prosecution prove intent beyond a
reasonable doubt. See Humanik v. Beyer,
871 F.2d 432, 443 (3d Cir. 1989).10 The
Superior Court found harmless error,
largely based on Ferretti’s admission on
cross-examination that the actual facts of
the case were inconsistent with diminished
capacity. But this only covers one
cons titutional error (the incorrect
9 For example, Affinito argues in
his brief that “had counsel . . . called an
expert witness, like Dr. Portnow, who was
capable and qualified to support the
defense and who had been provided with
appropriate records . . . , it would have had
a significant [e]ffect on the jury.” Yet the
preceding discussion demonstrates that
Portnow’s report leaves much to be
desired. As Affinito had the opportunity
to put the opinion of a second expert in
play, we decline to offer him a third bite at
the apple. We are not, however,
unsympathetic to Affinito’s position.
Were other psychological evidence
favorable to Affinito in the record, our
conclusion might have been different.
10 As noted by the Superior Court,
Affinito did not object to the jury
instruction at trial.

-- 12 of 17 --

13
instruction) with another (the failure to
provide Ferretti with all the facts of the
case). Indeed, our dissenting colleague
argues that “[h]ad a properly prepared
expert testified, Affinito would have
obtained a new trial based on the
erroneous diminished capacity instructions
that infected his first trial.”
This interrelating (some might say
compounding) of errors, however, is
ultimately harmless.11 “Humanik does not
compel or even permit us to grant [a writ
of habeas corpus] without considering
whether the error was harmful. A contrary
holding would violate well-settled
Supreme Cou rt precedent that ‘a
constitutional error does not automatically
require reversal of a conviction.’”
Kontakis v. Beyer, 19 F.3d 110, 115 (3d
Cir. 1994) (quoting Arizona v. Fulminante,
499 U.S. 279, 306 (1991)). An error is
harmless unless it “had [a] substantial and
injurious effect or influence in determining
the jury’s verdict.” Id. (quoting Kotteakos
v. United States, 328 U.S. 750, 776
(1946)).12 Overwhelming evidence that a
defendant acted with intent may also
render an erroneous jury instruction
harmless. See id. at 118.
Based on the strong evidence in the
record, and with scant evidence putting a
contrary outcome in play, we conclude that
the trial court’s erroneous instruction did
not have a substantial and injurious effect
on the jury’s verdict (even absent Ferretti
giving up Affinito’s diminished capacity
defense). As detailed in the previous
section, the written report of Dr. Portnow
c o n t a i n e d m a n y , a n d m a j o r ,
inconsistencies and omissions when
compared to Perez’s uncontroverted
eyewitness testimony.
Further, the testimony of Dr. Perr,
the State’s psychological expert, was
comprehensive.13 Based upon extensive
11 Despite AEDPA, we conduct an
independent harmless error analysis
because the Superior Court’s analysis was
based on an improper consideration — i.e.,
Ferretti’s cross-examination testimony.
See Cone v. Bell, No. 99-5279, 2004 U.S.
App. LEXIS 3882 at *33-34, 359 F.3d
785 (6th Cir. Mar. 1, 2004) (concluding
the AEDPA standard of review did not
apply when no state court had considered
the particular issue to be decided).
12 As we recognized in Kontakis,
the Supreme Court has ruled that in a
habeas case, as opposed to a direct appeal,
federal courts should apply the Kotteakos
“substantial and injurious effect” test as
opposed to the Chapman v. California,
386 U.S. 18 (1967), “beyond a reasonable
doubt” test used by the Superior Court.
See Brecht v. Abrahamson, 507 U.S. 619,
637-38 (1993).
13 While the record does not contain
Dr. Perr’s written evaluation, his trial
testimony covers seventy-five pages in the
record. Contrary to our dissenting
colleague’s assertion, we believe this
testimony covers broadly, and at times in
depth, Affinito’s medical health history.

-- 13 of 17 --

14
testing and evaluation, Dr. Perr concluded
that Affinito was of normal intelligence,
had issues with impulse control, and had
an anti-social personality. Perr concluded,
however, that Affinito did not suffer from
brain damage of any kind or from any
disorder that prevented him from forming
the requisite intent to commit knowing or
purposeful murder. In addition, Perr noted
that Affinito was not an epileptic per se,
had suffered only one possible seizure in
the seven years prior to the murder, and
was not more susceptible to the influence
of drugs and/or alcohol as a result of his
past seizures. Finally, this conclusion was
not in any way based upon the second
strangling.14
In this context, the evidence of
Affinito’s diminished capacity is so
underwhelming and remote that, even with
Ferretti’s concession aside and a correct
jury instruction in place, we perceive no
reasonable likelihood of it prevailing.
Thus we disagree with the dissent’s
conclusions that Affinito had a “seemingly
ironclad” winning argument on direct
appeal and that there is a reasonable
probability Affinito would have been
convicted of a lesser included offense at a
new trial.
IV. Conclusion
Despite the two constitutional
errors before us, we nonetheless conclude
that the evidence of diminished capacity
was so threadbare, and the evidence of
knowing and purposeful intent to murder
so strong, that the jury’s guilty verdict was
not undermined. The errors — slipshod as
they were and normally requiring a new
trial — in the circumstances of this unique
case were harmless. Accordingly, we
affirm the District Court’s denial of
Affinito’s petition for a writ of habeas
corpus.
RENDELL, Circuit Judge - dissenting.
As the majority notes, I disagree
with its analysis of prejudice. In my view,
but for the ineffectiveness of counsel,
there is a reasonable probability that the
outcome of Affinito’s trial would have
been different – namely, that Affinito
would have been convicted of
manslaughter, rather than murder.15 At the
14 The following exchange occurred
on redirect examination: “Q. So, for your
purposes you didn’t care if John Cupsie
died at Liberty Street or at the junkyard?
A. That’s correct, that’s irrelevant to my
evaluation of the person, that is correct.”
15I note that diminished capacity
would only be a defense to those crimes
where his mental disease or defect
effectively negated the required mental
state. N.J. Stat. Ann. § 2C:4-2 (2003).
Here, it would appear to be a defense to
crimes requiring intent or knowledge, such
as murder and kidnapping, see id. §§
2C:11-3, :13-1, but it would not shield
Affinito from a conviction for some form
of manslaughter where the requisite mens
rea is recklessness, see id. § 2C:11-4.

-- 14 of 17 --

15
very least, our confidence in the outcome
is undermined by the combined errors that
plagued his trial – an expert who
abandoned Affinito, sealing his fate, and
an erroneous jury instruction. As such,
these errors were prejudicial, the state
appellate court’s determination in
connection with the prejudice prong was
unreasonable, and habeas relief should
have been granted.
When we assess “reasonable
probability,” we are of necessity
hypothesizing, or speculating to a certain
extent, about another likely outcome. We
must imagine what alternative scenario
might have played out if the claimed error
had not occurred. In a situation such as
this, the requisite mental state of intent and
its relationship to any mental disease or
defect of the defendant is admittedly an
issue requiring expert testimony. The
question of intent was critical here, and I
cannot help but believe that the outcome
would have been different if Affinito’s
mental condition and history had been
explained by an expert who had been
properly prepared, to a jury that had been
properly instructed.
The majority’s contention that there
was compelling evidence from which
intent could be determined is faulty.
Certainly, there were Affinito’s actions –
gruesome, cruel actions, which were
described to the jury by Perez. But do
these actions alone necessarily speak to
Affinito’s state of mind at the time the
crime took place? The difficulty here is
that without an expert to explain
otherwise, they do. And that is precisely
why the woeful preparation of Ferretti,
leading to his abandonment of Affinito’s
major theory of defense, was so very
damaging.
Several aspects of the way in which
the trial played out as a result of counsel’s
ineffectiveness compel the conclusion I
reach. First, an expert psychiatrist in
possession of all relevant documents had
previously rendered an opinion stating that
A f f i n i t o e x p e r i e n c ed a u d i t o ry
hallucinations, suffered from a major
psychotic disorder, and was congenitally
damaged. This raises the distinct
probability that a similar opinion was
obtainable (with proper preparation) and
should have been offered. Moreover,
Portnow’s opinion referred to previous
hospitalizations and diagnoses of “major
affective disorder” and “borderline
psychotic disorder.” This was quite unlike
the opinion of Dr. Perr, which the majority
found to be comprehensive, as Perr
referenced no such mental health history
or previous diagnoses. In addition,
counsel’s cross examination of Perr was
totally inept, concentrating only on
sustained drug and alcohol use as the
possible root of Affinito’s problems.
Absent the aid of a defense expert who
could provide an opinion supporting the
idea that Affinito suffered from
diminished capacity, counsel was left with
no other basis for attacking Perr’s
conclusions or challenging his testimony.
The majority questions whether
Portnow would have been effective on
cross examination because the version of
events outlined in the body of his report,

-- 15 of 17 --

16
where he describes the story as related to
him by Affinito, differed from the version
relayed by Perez in his testimony. But to
me, any such variations between the two
accounts – and especially Affinito’s
recounting of hearing voices, with the
“sexy” voices getting louder and louder, as
described in Portnow’s report – would not
cast doubt on the basis for Portnow’s
opinion; rather, they would bolster the fact
that, although he may not have been
experiencing visual hallucinations,
Affinito perceived the events differently
from Perez. And, that was precisely the
point of Affinito’s diminished capacity
defense.
Moreover, we should not assume,
based on the fact that Portnow primarily
recounts the incident as Affinito described
it, that Portnow did not also take Perez’s
version of the events into account. We do
know from his report that Portnow –
unlike Ferretti – did review Perez’s
statement to the police. If he did, then the
inconsistencies in Affinito’s tale would
not be problematic as far as Portnow’s
opinion is concerned. Since he was
already aware of the contents of Perez’s
statement, Portnow would presumably
state on cross examination that, while he
referenced Affinito’s account in the body
of his report, he considered the facts
relayed by Perez as well when he formed
his opinion. Unless Perez’s trial testimony
differed dramatically from the story he
told police initially, it is not a stretch to
assume that Portnow would have been
prepared to explain or reconcile any of the
perceived inconsistencies referenced by
the majority when asked about them at
trial.
Further, the Superior Court
completely discounted the effect of
counsel’s obtaining another expert, such
as Portnow, to testify. It incorrectly, and
unreasonably, assumed that Portnow based
his opinion on something other than a
complete factual record. Such a
determination is clearly unfounded, since
Portnow’s report explicitly indicates that
he considered all of the pertinent
material.16 Having reached that incorrect
conclusion, the state court unreasonably
stopped short of considering how an
explanation of the relevant history and
diagnoses by a qualified expert would
have impacted the trial. Such testimony,
which I would by no means characterize
as evidence that is underwhelming or
remote, would have provided a basis for
the jury to find that Affinito’s actions were
the product of his compromised mental
functioning.
The prejudice caused by the
ineffectiveness of Affinito’s counsel was
compounded by the trial court’s
instructions to the jury, which incorrectly
placed the burden of proof regarding
mental state on Affinito. The trial court
16The majority concedes as much,
yet curiously still defends as reasonable
the state court’s assumption that Portnow
would have been susceptible to the same
damaging cross examination as Ferretti
based on his failure to explicitly reference
certain facts in the body of his report.

-- 16 of 17 --

17
expounded at length – for nearly seven
pages of the trial transcript – on the law of
diminished capacity, repeatedly stating
that it was the defendant’s burden to prove
that his mental disease or defect had
prevented him from forming the intent
required by the murder and kidnaping
statutes. In other words, the trial court
instructed the jury that the defendant had
to disprove the mental state elements of
the crimes charged. This instruction was
admittedly erroneous in light of our
decision in Humanik, because it
improperly relieved the prosecution of the
burden of proving an element of the crime,
as the Superior Court recognized.
Additionally, with Ferretti’s collapse and
no expert testimony supporting a
diminished capacity defense, the defense
had offered no proof whatsoever with
regard to mental state.
Here, again, the Superior Court
failed to comprehend the significance of
the combined effect of these two errors.
On direct appeal, the court determined that
the jury instruction error was harmless.
The court based this conclusion on its
observation that Ferretti’s testimony,
offered by the defense, had proven that
Affinito had formed intent, presumably
meeting the Commonwealth’s burden.
Then, during the state post-conviction
proceedings, the Superior Court
unreasonably determined that any
ineffectiveness on the part of Affinito’s
trial counsel had not caused Affinito
prejudice, without considering how the
proceedings on direct appeal were
impacted by counsel’s incompetence. The
court failed to realize that the prolonged
erroneous instructions by the trial court
doomed Affinito, when he had presented
no expert opinion to fulfill his purported
“burden” of proving mental state. Thus,
Ferretti’s testimony not only robbed
Affinito of a defense, it also robbed him of
a seemingly ironclad argument on direct
appeal based on the improper allocation of
the burden of proof on this very issue!
Had a properly prepared expert
testified, Affinito would have obtained a
new trial based on the erroneous
diminished capacity instructions that
infected his first trial. And, had a proper
jury instruction been given at his new trial,
requiring the Commonwealth to prove that
Affinito’s crime was not the result of a
mental disease or defect, there is a
reasonable probability that, given
Portnow’s diagnosis of his mental
disorder, the jury would have convicted
Affinito of a lesser included offense.
Thus, the error here was not clearly
harmless, as the majority concludes. Since
the state court’s analysis and
d e t e r m i n a t i o n r e g a r d i n g t h e
ineffectiveness of Affinito’s counsel was
an unreasonable application of Strickland,
I submit that the writ should issue
affording Affinito a new trial.

-- 17 of 17 --