Robert Richardson v. Warden, S.c.i. Huntingdon

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1112
ROBERT RICHARDSON,
Appellant
v.
WARDEN, S.C.I. HUNTINGDON;
ATTORNEY GENERAL, COMMONWEALTH OF PENNSYLVANIA;
DISTRICT ATTORNEY, PHILADELPHIA COUNTY
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 03-cv-00735
(Honorable Legrome D. Davis)
Argued: November 18, 2004
Before: SCIRICA, Chief Judge, McKEE and CHERTOFF, Circuit Judges
(Filed: February 8, 2005)
CHERYL J. STURM, ESQUIRE (ARGUED)
387 Ring Road
Chadds Ford, PA 19317
Attorney for Appellant
MARILYN F. MURRAY, ESQUIRE (ARGUED)
Office of District Attorney
1421 Arch Street
Philadelphia, PA 19102
Attorney for Appellees

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1Richardson was represented at trial and sentencing by Tariq Kareem El-Shabazz.
2See Commonwealth v. Richardson, 752 A.2d 424 (Pa. Super. 2000) (table).
Beginning with this direct appeal, Richardson has been represented at all times by Cheryl
J. Sturm.
3See Commonwealth v. Richardson, No. 2763 EDA 2001, 815 A.2d 1130 (Pa. Super.
2002) (table).
2
OPINION OF THE COURT
SCIRICA, Chief Judge.
This habeas corpus case involves a straightforward application of Commonwealth
v. Hubbard, 372 A.2d 687 (Pa. 1977). The District Court denied petitioner’s ineffective
assistance of counsel claim. Because we agree that petitioner has procedurally defaulted
this claim, we will affirm.
Following a jury trial in the Court of Common Pleas for Philadelphia County,
Petitioner Robert Richardson was convicted of first degree murder, criminal conspiracy,
and possessing an instrument of crime. On July 16, 1997, he was sentenced to life in
prison.1 His sentence was affirmed by the Pennsylvania Superior Court,2 and the
Pennsylvania Supreme Court denied allocatur on July 10, 2000. Richardson filed a
petition for collateral relief under the Pennsylvania Post Conviction Relief Act (“PCRA”),
42 Pa. C.S.A. § 9541 et seq., alleging ineffective assistance by his trial counsel, which
was denied on September 12, 2001. The Superior Court affirmed on October 2, 2002,3
and Richardson did not seek allocatur in the Pennsylvania Supreme Court.

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3
Richardson filed a petition for habeas corpus in the Eastern District of
Pennsylvania on February 3, 2003, in which he raised four claims. First, he contends trial
counsel’s representation of another client gave rise to a conflict of interest which
adversely affected his ability to present a defense on behalf of petitioner, thus constituting
ineffective assistance of counsel. Second, he argues trial counsel was ineffective because
he failed to object to the Commonwealth’s use of a prior inconsistent statement. Third,
Richardson contends trial counsel was ineffective for failing to present favorable
testimony he had alluded to in his opening statement. And finally, he claims the trial
court erred when it permitted the Commonwealth to use prior consistent statements to
rehabilitate a witness’s credibility. The District Court denied Richardson’s petition on
December 19, 2003, and granted a certificate of appealability with respect to petitioner’s
first claim.
The District Court had jurisdiction over Richardson’s habeas corpus petition
pursuant to 28 U.S.C. § 2254(a). We have jurisdiction pursuant to 28 U.S.C. §§ 1291,
2253. Our review of the District Court’s legal conclusion is plenary. Stevens v. Del.
Corr. Ctr., 295 F.3d 361, 368 (3d Cir. 2002). Because we find petitioner’s first claim to
be procedurally defaulted, we will affirm.
Petitioner’s conflict of interest claim is rooted in allegations that attorney El-
Shabazz, who represented Richardson at trial, served as counsel to co-defendant Clifford
Brown in a separate criminal matter. According to petitioner, this dual representation

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4
gave rise to a conflict of interest that caused El-Shabazz to render ineffective assistance
of counsel at trial. Richardson raised this claim for the first time on collateral appeal to
the Pennsylvania Superior Court.
The Superior Court found that Richardson had waived the claim because he did
not raise it on direct appeal. Noting that Pennsylvania law requires claims of
ineffectiveness to be raised “at the earliest stage in the proceedings at which the allegedly
ineffective counsel no longer represent[s] the appellant,” the Superior Court held that
Richardson– who had retained new counsel following trial– had waived this claim.
Commonwealth v. Richardson, No. 2763 EDA 2001, slip op. at 4-6 [ JA80-81 ].
Where the state court has refused to address the merits of a habeas petitioner’s
constitutional claim based upon an adequate and independent state procedural rule, the
claim is procedurally defaulted and will not be considered by a federal court on habeas
review. Harris v. Reed, 489 U.S. 255, 260 (1989); see also Reynolds v. Ellingsworth, 843
F.2d 712, 717 (3d Cir. 1988) (“[A] federal court must assure itself that a habeas petitioner
has complied with relevant state procedural requirements before it can delve into claims
of constitutional error in a state conviction”). To determine whether the rule of procedure
relied upon by the Pennsylvania Superior Court is “adequate and independent,” we
consider three factors: “whether the state procedural requirement is stated in
‘unmistakable terms,’ whether the state court[] ha[s] refused to review the claims on the
merits, and whether the state court[’s] refusal in this instance is ‘consistent’ with other

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5
state decisions.” Reynolds, 843 F.2d at 719 (quoting Wainwright v. Sykes, 433 U.S. 72,
85-86 (1977)).
The Pennsylvania rule at issue is the former requirement that claims of ineffective
assistance must be raised as soon as the defendant is no longer represented by the
allegedly ineffective attorney. The Pennsylvania Supreme Court first articulated this rule
in 1977 in Commonwealth v. Hubbard:
The rule . . . is that ineffectiveness of prior counsel must be raised as an
issue at the earliest stage in the proceedings at which the counsel whose
effectiveness is being challenged no longer represents the defendant. It
follows then that when newly appointed post-trial counsel fails to assign the
ineffectiveness of trial counsel as a ground for post-trial relief, the issue of
trial counsel’s ineffectiveness is not properly preserved for appellate
review.
372 A.2d 687, 695 n.6 (Pa. 1977). Applying the three Reynolds factors, it is clear that the
Hubbard rule– at the time it was applied to Richardson– was an adequate and
independent state rule. The Hubbard rule is clear and stated in unmistakable terms. The
Pennsylvania Superior Court specifically refused to review Richardson’s ineffectiveness
claim because he had not raised it on direct appeal, when he first ceased to be represented
by Mr. El-Shabazz. And finally, the Hubbard rule was well-established in Pennsylvania
and was applied by the Superior Court consistently in other cases. See, e.g.,
Commonwealth v. Laird, 726 A.2d 346, 354 (Pa. 1999); Commonwealth v. Green, 709
A.2d 382, 383 (Pa. 1998); Commonwealth v. Griffin, 644 A.2d 1167, 1170 (Pa. 1994).

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6
Accordingly, we find the Hubbard rule, as it was applied to petitioner, to be an adequate
and independent state procedural rule.
It bears noting that since its application to petitioner’s case, the Hubbard rule has
been abandoned. In Commonwealth v. Grant, the Pennsylvania Supreme Court held that
ineffective assistance claims should be raised on collateral review. 813 A.2d 726, 737-38
(Pa. 2001). As a result of this new rule, “a claim raising trial counsel ineffectiveness will
no longer be considered waived because new counsel on direct appeal did not raise a
claim related to prior counsel’s ineffectiveness.” Id. at 738. In addition to announcing
this new rule, the Grant Court considered the scope of its application:
Although new rules of procedure of non-constitutional dimension are
commonly applied only to the case currently pending before the court and to
cases prospectively . . . in this instance we believe that the considerations
set forth in Blackwell will be best served by retroactive application of the
new rule. The purpose of the new rule will be served since defendants will
no longer be compelled to raise ineffectiveness claims on an undeveloped
record; although the parties may rely on the old rule of law and raise
ineffectiveness claims, neither party will be harmed by application of the
new rule since claims of ineffectiveness can be raised in a collateral
proceeding; finally, the administration of justice will be served since the
rule announced today provides a clearer and more concise standard for both
courts and the parties to follow. Thus, the new rule we announce today will
apply to the instant case as well as those cases currently pending on direct
appeal where the issues of ineffectiveness have been properly raised and
preserved.
Id. at 738-39 (citations omitted). The Grant Court also specifically held that the new rule
would have “no effect on cases currently pending on collateral review.” Id. at 739 n.16.

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4Petitioner argues that the Pennsylvania Supreme Court’s subsequent modification of
the Hubbard rule compels a finding that the former rule is “obsolete,” served no
legitimate state interest, and should not be applied to his alleged waiver. In light of
Grant, he argues, Hubbard can no longer be considered an “adequate” rule of state
procedure.
Whether a rule is firmly established and thus “adequate,” however, is determined
by reference to state jurisprudence at the time of the alleged procedural default. See
Cabrera v. Barbo, 175 F.3d 307, 313 (3d Cir. 1999); Doctor v. Walters, 96 F.3d 675, 684
(1996) (citing Reynolds, 843 F.2d at 722). One reason for determining questions of
procedural default by reference to the waiver law in effect at the time of the alleged
waiver is notice; that is, “a petitioner should be on notice of how to present his claims in
the state courts if his failure to present them is to bar him from advancing them in a
federal court,” and he can only be on notice of those rules effective contemporaneous to
his direct appeal and PCRA petition. Cabrera, 175 F.3d at 313. Furthermore, were we to
adopt petitioner’s reading of retroactivity– under which all rules abandoned by way of
subsequent caselaw become “obsolete”– every new rule of procedure would have
unlimited retroactive reach. And finally, assessment of state habeas petitioners’
compliance with the procedural rules in effect at the time of their state court proceedings
advances principles of comity and federalism by ensuring that petitioners do not obtain
federal habeas review of constitutional claims which– due to their own non-compliance–
(continued...)
7
When the Grant opinion was issued on December 31, 2002, Richardson’s direct
appeal had been closed for over two years and his state collateral proceedings were
completed. By its express terms, then, the rule announced in Grant did not apply to
Richardson. See Villot v. Varner, 373 F.3d 327, 335 n.8 (3d Cir. 2004) (noting that the
Grant rule has “no application” where habeas petitioner’s “direct and collateral state
proceedings had long been closed by the time Grant was issued”). Rather, because
Richardson’s direct appeal had concluded before Grant issued, the Hubbard rule– which
required him to raise his ineffectiveness of trial counsel claim on direct appeal– applied to
Richardson.4

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4(...continued)
have not been reviewed first by the state court system.
Thus, despite petitioner’s contention that application of the Hubbard rule is a
“sham,” we are convinced it is the correct analytical lens through which to approach
waiver in this case. Accord Villot, 373 F.3d at 335.
8
Accordingly, the Pennsylvania Superior Court’s decision to find petitioner’s claims
waived was a consistent application of an independent and adequate state procedural rule.
Thus, Richardson’s ineffective assistance of trial counsel claim is procedurally defaulted.
See Harris, 489 U.S. at 260.
This court may review a procedurally defaulted claim only where petitioner “can
demonstrate cause for the default and actual prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Petitioner alleges that the facts underlying the alleged conflict of interest were not known
to appellate counsel at the time of his direct appeal, thus giving rise to “cause” excusing
his default. See id. at 753 (cause may exist where “the factual or legal basis for a claim
was not reasonably available to counsel”) (quoting Murray v. Carrier, 477 U.S. 478, 488
(1986)). In this case, however, petitioner knew of the factual basis for the alleged conflict
of interest claim over five months before he defaulted the claim by not raising it on direct
appeal. Significantly, petitioner’s failure to raise this claim on direct appeal was not the
result of a state effort to conceal facts. It may have been the result of counsel’s decision
not to raise the claim, or failure to fully develop the claim, or failure to appreciate the

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5Because we find federal habeas review of petitioner’s claim barred by his procedural
default, we need not reach the question of whether the Pennsylvania Superior Court’s
alternative holding– that trial counsel did not labor under a conflict of interest–
constitutes an unreasonable application of clearly established federal law.
9
significance of the facts discovered five months earlier. Whatever the reason, petitioner
has not demonstrated “cause” that would excuse his default. Furthermore, petitioner has
failed to demonstrate that he is actually innocent, a requirement of the “fundamental
miscarriage of justice” exception to procedural default. See Schlup v. Delo, 513 U.S. 298,
327 (1995).5
Federal review of petitioner’s habeas review is barred due to his unexcused
procedural default. We affirm.

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