Richard Lee Mitchell v. James Grace, Superintendent, Sci Huntington

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-2081
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RICHARD LEE MITCHELL,
Appellant
v.
JAMES GRACE, SUPERINTENDENT, SCI HUNTINGTON;
THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA,
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cv-3717)
District Judge: Honorable John P. Fullam
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Submitted Under Third Circuit LAR 34.1(a)
October 25, 2007
Before: SLOVITER, CHAGARES, and HARDIMAN, Circuit Judges.
(Filed: July 31, 2008)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.

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Richard Lee Mitchell appeals the denial of his petition for writ of habeas corpus
(Petition). In our examination of the merits of this matter, we believe that it is
unnecessary to reach the issue of procedural bar in light of our decision on the underlying
ineffective assistance of counsel claim.
I.
Because we write for the parties, we will recount only those facts essential to our
decision.
In late 2000, Mitchell, Steven McCrea, and McCrea’s aunt were awaiting takeout
service at a Philadelphia restaurant when Kendrick Haskell and John Ford arrived by car.
As Haskell was exiting the restaurant, McCrea confronted him, claiming that Haskell had
bumped into McCrea’s aunt on his way in. Words were exchanged, and a fistfight ensued
between McCrea and Haskell. During the fight, McCrea took a step back and asked for a
gun, whereupon Mitchell supplied a loaded .32 caliber revolver. McCrea shot Haskell
five times, killing him. McCrea then challenged Ford, who had exited the vehicle to
witness the fight, and pointed the gun at him. When Ford turned to run away, McCrea
shot him in the head with the last bullet in the cylinder. Ford died instantly.
II.
At Mitchell’s trial, the prosecutor sought to introduce the preliminary hearing
testimony of Braheem Jackson, an eyewitness who said he saw Mitchell hand McCrea the
gun. Because Jackson was unavailable to testify, the prosecutor offered to stipulate that

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Jackson had one juvenile crimen falsi conviction. Mitchell’s trial counsel, Tariq El-
Shabazz, objected claiming that the prosecutor failed to turn over Jackson’s juvenile
record to Michael Wallace, Esq., who represented Mitchell at the preliminary hearing.
To resolve the dispute, the trial court held a suppression hearing at which Assistant
District Attorney Anne Marie Coyle testified that she had given Wallace a copy of
Jackson’s criminal record at the preliminary hearing. El-Shabazz cross-examined Coyle
but did not introduce any evidence. After finding Coyle credible, the court admitted
Jackson’s testimony over El-Shabazz’s objection, and the trial commenced.
The jury found Mitchell guilty of conspiracy to commit murder and he was
sentenced to 8 to 40 years in prison. On direct appeal, El-Shabazz argued that the trial
court erred by admitting Jackson’s preliminary hearing testimony. The Superior Court
affirmed the judgment, and the Pennsylvania Supreme Court denied allocatur.
Mitchell then sought collateral relief under Pennsylvania’s Post Conviction Relief
Act (PCRA), 42 Pa. C.S.A. §§ 9541 et seq. with the help of new counsel. In the PCRA
proceeding, Mitchell alleged that El-Shabazz rendered ineffective assistance by failing to
call Wallace to contradict Coyle’s testimony. The PCRA court determined that this claim
had been “previously litigated” on direct appeal, and declined to hear it under 42 Pa.
C.S.A. § 9543(a)(3). Once again, the Superior Court affirmed and the Pennsylvania
Supreme Court denied allocatur.

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In his Petition, Mitchell asserted three claims, only one of which is pertinent to this
appeal: viz., whether El-Shabazz rendered ineffective assistance at trial under Strickland
v. Washington, 466 U.S. 668 (1984).
III.
Mitchell insists that El-Shabazz rendered ineffective assistance at the suppression
hearing when he failed to call Wallace to rebut Coyle’s claim that she gave Wallace a
copy of Jackson’s juvenile record at the preliminary hearing.
“Under the first prong of Strickland, a petitioner must show that trial counsel’s
performance was deficient.” Outten v. Kearney, 464 F.3d 401, 414 (3d Cir. 2006)
(citation omitted). “The proper standard for attorney performance is that of ‘reasonably
effective assistance,’ as defined by prevailing professional norms.” Id. (alterations and
citation omitted). Thus, Mitchell “must establish that counsel’s representation fell below
an objective standard of reasonableness,” which we assess “on the facts of the particular
case, viewed as of the time of counsel’s conduct.” Id. (citation omitted). This inquiry
requires courts to “be highly deferential to counsel’s reasonable strategic decisions and
guard against the temptation to engage in hindsight.” Marshall v. Hendricks, 307 F.3d
36, 85 (3d Cir. 2002) (citation and internal quotation marks omitted).
The Constitution does not require that a criminal defense attorney leave “no
witness unpursued.” See Jacobs v. Horn, 395 F.3d 92, 122 (3d Cir. 2005). As with other
decisions by trial counsel, we presume that counsel acted strategically in deciding not to

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call certain witnesses, and the defendant bears the burden of rebutting that presumption.
See Thomas v. Varner, 428 F.3d 491, 499-500 (3d Cir. 2005). In cases where the record
does not explicitly disclose trial counsel's actual strategy or lack thereof, a defendant may
rebut the presumption only by showing that no sound strategy could have supported the
conduct. See id. at 500. In evaluating a defendant’s proof, it is “entirely proper” that we
“engage in record-based speculation as to what counsel’s strategy might have been.” See
id. at 500 n.8. If the record shows that “counsel actually pursued an informed strategy
(one decided upon after a thorough investigation of the relevant law and facts),” the
presumption becomes “virtually unchallengeable.” Id. at 500 (citation omitted).
Here, on direct appeal the Superior Court rejected Mitchell’s claim that the trial
court erred when it denied Mitchell’s motion to suppress. The Superior Court based its
affirmance entirely on the trial court’s factual finding that Coyle credibly testified that she
gave Jackson’s juvenile record to Wallace. In this appeal, Mitchell must show that more
zealous efforts by El-Shabazz would have uncovered clear and convincing evidence
sufficient to rebut this critical fact. See 28 U.S.C. § 2254(e)(1). He has failed to meet
this burden.
Mitchell faults El-Shabazz for failing to present the live testimony of Wallace
himself. In support of this claim, Mitchell argues that Wallace averred in his affidavit
that El-Shabazz “did not even bother to contact” Wallace. But Wallace’s affidavit
supports no such conclusion. In his affidavit, Wallace avers that he was available to

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testify at the suppression hearing, and outlines what his testimony would have been had
he been called to the stand. Absent evidence to the contrary, we assume that El-Shabazz
was aware of the substance of what Wallace might testify but made a reasoned decision
not to call him anyway. See Wright, 473 F.3d at 91 (noting that, where counsel knew a
witness was available and was aware of what she could testify but declined to call her,
counsel could nevertheless have “a strategic reason” for his decision).
Although Wallace’s affidavit shows that he was willing to testify on Mitchell’s
behalf at the suppression hearing, “the mere fact of people willing to testify on [his]
behalf does not demand a finding of ineffectiveness.” Marshall v. Cathel, 428 F.3d 452,
469 (3d Cir. 2005).
To assess El-Shabazz’s effectiveness, we must consider Wallace’s affidavit in toto,
which shows why El-Shabazz reasonably might have declined to present Wallace’s
testimony at the suppression hearing. Insofar as Wallace merely averred that “had [he]
been given a copy of [Jackson’s] criminal extract, [he] would have cross-examined him
on same,” his testimony would have been extremely weak. Taken at face value,
Wallace’s affidavit is hardly a rebuttal of Coyle’s unequivocal testimony that she actually
handed him a copy of Jackson’s record at the preliminary hearing. More importantly, if
Wallace’s testimony at the suppression hearing tracked his affidavit, a competent attorney
could have forced Wallace to either concede that he did not invariably cross-examine
witnesses on their criminal records even when he had them — especially where their

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testimony was becoming more favorable to the defense with the passage of time, as was
true of Jackson’s testimony — or stick to his guns, insist that he impeached witnesses
with their records each and every time he had a chance to do so in his more than 35 years
of practicing law, and appear incredible in the eyes of the court. Where counsel declines
to offer testimony of marginal value which would be especially vulnerable to cross-
examination and which would distract the finder of fact from the possible weakness of the
state’s case, he has not rendered ineffective assistance. See Diggs v. Owens, 833 F.2d
439, 446 (3d Cir. 1987); see also McAleese v. Mazurkiewicz, 1 F.3d 159, 165-68 (3d Cir.
1993). Thus, because El-Shabazz reasonably could have concluded that presenting
lukewarm testimony would have been unlikely to succeed, his decision not to call
Wallace cannot be considered ineffective. See Flamer v. Delaware, 68 F.3d 710, 730 (3d
Cir. 1995).
Mitchell insists that no reasonable strategy would support El-Shabazz’s decision
not to call Wallace to testify, arguing:
[I]t was incumbent upon trial counsel to call [Wallace] to state
unequivocally that the prosecutor did not provide him with Jackson’s
juvenile record of crimen falsi.... [¶] In light of the deference usually given
to the Commonwealth in situations where a decision could turn on the
strength of the prosecutor’s representations, there could be no reasonable
basis for trial counsel not to have called [Wallace] to testify that he [had]
not received the vital impeachment testimony from the prosecutor.
[Wallace’s] testimony was necessary for trial counsel to succeed in his
attempts to suppress Jackson’s testimony. He was ready and willing to
attest to this fact at an evidentiary hearing . . . .

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We are unpersuaded. Upon review of El-Shabazz’s argument at the suppression hearing,
it is clear from the record that his decision not to call Wallace was the product of a
considered strategy in which counsel attempted to keep the burden of proof squarely on
the prosecutor. After grilling Coyle under oath about her failure to make any record of
having divulged Jackson’s juvenile record to Wallace, El-Shabazz argued:
We cannot presume why Mr. Wallace didn’t do anything. The
Commonwealth has the burden to produce [sic] why it is that they believe
that the witness, first of all, should be declared unavailable, and secondly,
where they can use this particular testimony. [¶] They didn’t call Mr.
Wallace here. They asked [sic] Mr. Wallace did he have it, didn’t he have
it, why didn’t they in fact cross-examine the witness as to that aspect. None
of that was done. [¶] So the argument as to this Court should take the
supposition of counsel into consideration as to why it wasn’t done, Judge, I
believe no. We need evidence.
El-Shabazz synthesized these two strands — the burden of proof and Coyle’s failure to
document that she provided Jackson’s juvenile record to Wallace — into a cogent theory:
[This] is a case of using the experience argument of counsel, someone with
15 years of experience, someone who’s well-versed on the law, someone
who knows the importance of a criminal extract, someone who knows the
importan[ce] of preserving a record [which] would indicate that the record,
that a statement was in fact passed over but not in a criminal extract. [¶]
We know the importance of that. And not only indicate that in the record,
but there’s not even any notation.... [¶] But not that there was a copy of the
criminal extract that was run on a particular day and if it’s run on that day,
there’s a computer printout which indicates the date in which that criminal
extract, none of that, Judge. [¶] .... [C]ounsel in his argument is shifting the
burden because the defense doesn’t do this and ... doesn’t do that. [¶] Judge,
it’s his burden. Mr. Wallace wasn’t trying to preserve the testimony. Mr.
Wallace was cross-examining someone at a preliminary hearing. It was the
Commonwealth that was attempting to preserve the testimony.

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Thus, as to the question whether Coyle gave this discovery to Wallace, El-Shabazz
concluded: “We should have evidence that demonstrates that and we don’t have that
evidence here.”
We also note that at trial El-Shabazz correctly argued that the prosecution had the
burden of showing that Jackson was unavailable and that Mitchell had an adequate
opportunity to cross-examine him. See McCandless v. Vaughn, 172 F.3d 255, 265 (3d
Cir. 1999) (citations omitted). As we have noted, “[p]erhaps the single most commonly
employed defense trial strategy is to eschew any single pre-planned theory and to put the
prosecution to its proof and exploit any weakness that became evident as the trial
unfolds.” Flamer, 68 F.3d at 729. The record reflects that El-Shabazz approached the
suppression hearing by “put[ting] the prosecution to its proof.” That strategy was not
unreasonable, and neither was El-Shabazz’s decision to forego presenting Wallace’s
relatively weak testimony.
In the final analysis, it is worth reiterating that “[t]he defendant bears the burden of
overcoming the presumption that the challenged action might be considered sound trial
strategy.” Jacobs, 395 F.3d at 118 (citation and internal quotation marks omitted). Here,
the record reflects that El-Shabazz pursued an informed legal strategy. Although Mitchell
complains that El-Shabazz did not present Wallace’s testimony, there is no evidence to
support Mitchell’s claim that El-Shabazz was unaware of its content. Where, as is true
here, counsel actually pursued an informed strategy, the presumption that El-Shabazz

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Even if Mitchell had demonstrated that El-Shabazz rendered ineffective1
assistance, his Strickland claim would fail unless he could prove that counsel’s
representation prejudiced him at trial. See Gray, 878 F.2d at 712; see also Marshall, 307
F.3d at 85. We conclude that Mitchell has not demonstrated a reasonable likelihood that
the strategy El-Shabazz pursued affected the outcome of the trial.
In his Opening Brief, Mitchell also argues that El-Shabazz rendered ineffective2
assistance by failing to argue his own ineffectiveness on appeal. Unlike the claim that El-
Shabazz was ineffective at trial, this claim was not raised in the Petition. Claims not
raised in the District Court are waived on appeal. Hartey v. Vaughn, 186 F.3d 367, 370
(3d Cir. 1999). Even if it were not waived, however, this claim — which we would
analyze under Strickland, see Smith v. Robbins, 528 U.S. 259, 285 (2000) — would fail
based on our conclusion that El-Shabazz did not render ineffective assistance at trial. See
Diggs, 833 F.2d at 446.
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followed a sound strategy becomes “virtually unchallengeable.” Thomas, 428 F.3d at 500
(citation omitted). The record supports that presumption in this case, and Mitchell has not
overcome it. Nor has Mitchell shown that Wallace’s lukewarm affidavit, if presented live
on the witness stand, would have amounted to clear and convincing evidence sufficient to
rebut Coyle’s testimony. See 28 U.S.C. § 2254(e)(1). Accordingly, we hold that Mitchell
has not satisfied the first prong of Strickland.1
IV.
In sum, we conclude that Mitchell’s Petition was properly denied because his
ineffective assistance claim fails on its merits. Accordingly, we will affirm the judgment2
of the District Court.

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