Barry Priester v. Donald T. Vaughn

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03-2956
BARRY PRIESTER,
Appellant
v.
DONALD T. VAUGHN;
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. Civil No. 02-cv-00075)
District Judge: Hon. Stewart Dalzell
Argued May 4, 2004
Before: SLOVITER, FUENTES and
BECKER, Circuit Judges
(Filed: August 19, 2004)
Johanna E. Markind (Argued)
Philadelphia, PA 19102
Attorney for Appellant
Thomas W. Dolgenos (Argued)
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney
Law Division
Arnold H. Gordon
First Assistant District Attorney
Lynne Abraham
District Attorney
Philadelphia, PA 19102-1582
Attorneys for Appellees
OPINION OF THE COURT
SLOVITER, Circuit Judge.
This appeal arises from appellant
Barry Priester’s 1991 state conviction of
first degree murder, two counts of
aggravated assault, criminal conspiracy,
and possession of an instrument of crime.
Priester appeals the decision of the United
States District Court for the Eastern
District of Pennsylvania denying his
petition for a writ of habeas corpus. The
District Court had subject matter
jurisdiction over Priester’s habeas corpus
petition pursuant to 28 U.S.C. § 2254 and
we have jurisdiction pursuant to 28 U.S.C.
§§ 1291, 2253.
I.
FACTS AND PROCEDURAL
HISTORY
On May 19, 1990, Priester and
Nathaniel Butler met Tracey Postell at the
corner of 8th and Louden Streets in
Philadelphia. Priester told Postell that he
was meeting a group of people to confront
the individuals who had “rolled” Darius
Barnes – a mutual friend. Postell agreed to

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accompany Priester and Butler to locate
these individuals. Priester drove one car
while Barnes drove another. Two or three
other cars containing additional gang
members joined the caravan. According to
Postell’s trial testimony, at one point along
the way Priester pulled alongside Barnes’
car and said, “[w]hen we get up there, no
questions asked, start busting.” Trial Tr. at
190 (Sept. 13, 1991).
The cars arrived at the Belfield
Recreational Center in North Philadelphia
and Barnes began searching the
playground for their targets. Once Barnes
identified the individuals who “rolled”
him, Priester removed a gun from his
jacket and handed it to Butler. Butler fired
several shots into the crowd. Shots were
also fired from the other vehicles. Soon
after the shooting, Priester and the others
drove away from the scene. As a result of
the shooting, Terrence Lucan died, and
Ronald Holliman and Walter Jefferson
sustained significant injures.
On June 7, 1990, Philadelphia
Homicide Detective Frank M cGouirk
questioned Postell about the shooting. At
that time, Postell, who subsequently pled
guilty in a negotiated plea, detailed the
factual scenario surrounding the shooting
as well as Priester’s and Butler’s
involvement. Butler was then arrested and
questioned. He stated that Priester was in
the car with him and Postell, and that
Butler shot twice into the crowd with a .38
caliber pistol.
After further investigation, Priester
and Barnes were indicted on first degree
murder, two counts of aggravated assault,
criminal conspiracy and possession of an
instrument of crime. They were tried
together in the Philadelphia Court of
Common Pleas before a jury. During
testimony at trial, Postell attempted to
recant the story he told the police and
stated that he had lied to the police and
was asleep in the car when the incident
occurred. Having been forewarned by
defense counsel about this change, the
prosecution sought the trial court’s
approval to admit Butler’s previous
statement, which the trial court granted
subject to redaction. Thereafter, a
redacted version of the prior statement
made by Butler, describing the incident,
was introduced at trial. This redacted
statement replaced Priester’s name, and all
other names, with phrases such as “the
other guy.” App. at 91-97. At the
conclusion of the trial, the jury convicted
Priester as well as Butler on all counts. At
the sentencing phase, the jury returned a
sentence of life imprisonment for each
defendant on the murder convictions and
the court imposed sentences on the
remaining counts, to run concurrently for
both defendants.
After the trial court denied post-
verdict motions, Priester appealed to the
Pennsylvania Superior Court, contending
that the Commonwealth breached its
agreement not to introduce Butler’s prior
statement and challenging the sufficiency
of the redaction, the admission of Postell’s
earlier statement as substantive evidence,
and the sufficiency of the evidence to
convict him of first degree murder. The

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court rejected these claims. The
Pennsylvania Supreme Court denied
allocatur. Commonwealth v. Priester, 634
A.2d 220 (Pa. 1993). Priester then filed a
petition for collateral review under the
Pennsylvania Post-Conviction Relief Act,
42 Pa. Cons. Stat. § 9541 et seq. (2003)
(“PCRA”), which was denied by both the
trial court and the Superior Court.
Priester next petitioned for allocatur
in the Pennsylvania Supreme Court of
three issues. He argued that Butler’s
statement was insufficiently redacted in
violation of Bruton v. United States, 391
U.S. 123 (1968); that the trial court erred
because it admitted Postell’s prior
inconsistent statements as substantive
evidence; and that the jury instructions
regarding accomplice liability were
deficient. The Pennsylvania Supreme
Court denied allocatur.
Thereafter, Priester filed a pro se
petition for a writ of habeas corpus in the
District Court, which was amended after
the appointment of new counsel. The
matter was referred to a Magistrate Judge,
who issued an opinion recommending that
Priester’s claims be denied. The District
Court approved a nd ad opted the
Magistrate Judge’s recommendation, but
certified for appeal two of the many claims
raised by Priester: the claim that the
admission of Butler’s redacted statement
violated the Confrontation Clause of the
Sixth Amendment, and the claim that trial
counsel was ineffective because of his
failure to object to the jury instruction on
accomplice liability.1 We now consider
these issues on appeal.
II.
DISCUSSION
A. Standard of Review
At the outset, we set forth our
standard of review. Under the Anti-
Terrorism and Effective Death Penalty Act
(“AEDPA”):
An application for a writ of
habeas corpus on behalf of a
person in custody pursuant
to the judgment of a State
court shall not be granted
with respect to any claim
that was adjudicated on the
merits in State court
proceedings unless the
adjudication of the claim –
1 Counsel for Priester attempts to
add an ineffectiveness of counsel claim
based on a failure to object to the
admission of the redacted statement. See
Appellant’s Br. at 20-24. However, the
District Court certified only the two
issues set forth above for appeal, App. at
7, and we denied Priester’s request to
certify other issues on September 23,
2003. Therefore, we decline to discuss
this issue herein. In any event, in his
reply brief Priester states that the issue is
properly presented as a Confrontation
Clause claim. Appellant’s Reply Br. at 2
n.1. We decline to discuss the due
process claims related to the arguments
made on appeal for the same reason.

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(1) 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 .
. . .
28 U.S.C. § 2254(d) (emphasis added).
Priester argues that because the
Pennsylvania Superior Court cited only
Pennsylvania law with no reference to
federal law, we need not apply AEDPA’s
deferential standard of review. In granting
a certificate of appealability, the District
Court stated it believed that the deferential
standard was applicable, but cited in a
footnote this court’s opinion in Everett v.
Beard, 290 F.3d 500 (3d Cir. 2002), which
held otherwise. We need not dwell on this
issue2 because subsequent opinions of the
Supreme Court of the United States have
made clear that as long as the reasoning of
the state court does not contradict relevant
Supreme Court precedent, AEDPA’s
general rule of deference applies. Early v.
Packer, 537 U.S. 3 (2002); Woodford v.
Visciotti, 537 U.S. 19 (2002). In Early,
the Supreme Court held that qualification
for AEDPA deference “does not require
citation of our cases – indeed, it does not
even require awareness of our cases, so
long as neither the reasoning nor the result
of the state court decision contradicts
them.” Early, 537 U.S. at 8 (emphasis in
original). Similarly, in Woodford, the
Supreme Court held that the California
Supreme Court’s “shorthand reference” to
the ineffective assistance of counsel
standard, while imprecise, did not render
the decision unworthy of deference.
Woodford, 537 U.S. at 24; see also Bell v.
Cone, 535 U.S. 685, 698 (2002) (applying
the deferential AEDPA standard of review
where the state court had relied only on its
2 We note that in Everett, the
accomplice liability instruction was
patently erroneous as a matter of law, as
the trial court peppered its instructions
with legal admonitions such as, “[a]
killing is willful and deliberate if the
defendant and/or his accomplice . . .
consciously decided to kill the victim . . .
.” Everett, 290 F.3d at 504 (emphasis in
original). Instead of objecting, trial
counsel actually “complimented the
judge on the fairness of these instructions
after the jury left the courtroom.” Id. at
505. The Commonwealth argued that
accomplice liability for first-degree
murder was not clearly established at the
time of Everett’s trial, but we held that
Everett’s trial counsel was ineffective for
failing to object to an instruction that
allowed a juror to ascribe an
accomplice’s intent to the defendant and
that a Pennsylvania Superior Court
decision filed well before Everett’s trial
should have given counsel a basis to
object. The Everett opinion noted that
the Pennsylvania Supreme Court
thereafter specifically held that for an
accomplice to be found guilty, s/he must
have intended that the victim be killed.
Id. at 512-14.

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own precedent to reject the petitioner’s
ineff ectiv e assistance of counsel
allegation); Rompilla v. Horn, 355 F.3d
233 (3d Cir. 2004) (applying AEDPA
deference to Pennsylvania co urt’s
determination of petitioner’s allegation of
ineffective assistance of counsel despite
the court’s failure to expressly cite to the
Strickland standard).
Accordingly, we hold that the
deferential standard of AEDPA applies
even if the state court does not cite to any
federal law as long as the state court
decision is consistent with federal law.
B. Bruton Issue
In order to protect a defendant’s
Sixth Amendment rights to confrontation
and cross-examination, trial courts that
admitted statements of non-testifying co-
defendants would routinely instruct jurors
that the statements were not to be
considered evidence against the defendant
at trial. In Bruton, the Supreme Court
recognized the inadequacy of such
instructions, stating that “there are some
contexts in which the risk that the jury will
not, or cannot, follow instructions is so
great . . . that the practical and human
limitations of the jury system cannot be
ignored.” Bruton, 391 U.S. at 135.
The Court held that “because of the
substantial risk that the jury, despite
instructions to the contrary, looked to the
incriminating extrajudicial statements in
determining petitioner’s guilt, admission
of [the co-defendant’s] confession in this
joint trial violated petitioner’s right of
cross- exam ination secured b y the
Confrontation Clause of the Sixth
Amendment.” Id. at 126. The Court noted
that some courts had redacted the
statement to avoid the Sixth Amendment
issues. See id. at 134 n.10 (“Some courts
have required deletion of references to
code fend ants whe re practicable.”).
Thereafter, the courts generally followed
the practice of redacting co-defendants’
statements in order to eliminate all explicit
references to other defendants on trial
before those statements were admitted into
evidence.
Priester argues that the admission of
Butler’s redacted statement violated his
Sixth Amendment right to confrontation.
The issue arose in the instant case because
Postell gave testimony at trial that differed
from the statements that he gave to police.
The state moved to admit Butler’s
statement as evidence of B utler’s
involvement in the shooting. The statement
was redacted to replace all references to
Priester and other participants in the
shootings with words such as “the other
guy,” “someone,” “someone else,” “the
guy,” and “another guy.” App. at 91-97.
In relevant part, the redacted statement
read at trial was:
A: Well like 15 guys came
and we were all sitting on
the corner of 8th and
Louden Sts. It was like 4
something in the afternoon.
Several guys came up to the
corner some were walking
and others were in cars.
They started fighting and
shooting at anybody who

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was out there. . . .
Somebody gave one of the
guys a .38 caliber gun . . . .
Then another guy shot
twice. After the first guy
shot they pulled off and
after the other two shots I
pulled off.
. . . .
Q: In what car was the guy
who shot first?
A: He was the passenger in
the front seat of the brown
Toyota. That was the first
car.
Q: How many were in the
car with him?
A: Two other guys.
Q: How many were in the
second car?
A: I was the driver and two
others.
Q: How many shots did you
see fired from the second
car?
A: Two.
. . . .
Q: Who did the guy in your
car shoot at?
A: He just put out the
window and shot twice. He
wasn’t looking.
App. at 91-93. The trial court instructed
jurors:
A statement made by a
defendant before trial may
be considered as evidence
but only against the
defendant who made the
statement. You may not
consider one defendant’s
statement as evidence
against the other defendant[
] . . . .
Trial Tr. at 416 (Sept. 17, 1991).
Priester argues that the admission of
this redacted statement violated the Sixth
Amendment because replacing Priester’s
name with varying phrases and pronouns
did not adequately shield his identity, as
other trial testimony made clear who was
in the second car. During Postell’s
testimony, he identified the occupants of
his car as being “Barry [Priester] and Nate
[Butler].” App. at 108 (quoting Trial Tr. at
182 (Sept. 13, 1991)). Furthermore, in his
opening statement, the prosecutor claimed,
in the first of those cars was
an individual by the name of
Darius Barnes. In another
c a r , t h e d e f e n d a n t s ,
Nathaniel Butler and Barry
Priester, were riding along
with an individual named
Tracey Postell.
App. at 106 (quoting Trial Tr. at 20 (Sept.
12, 1991)).
From Postell’s testimony and the
prosecutor’s opening statement, which is
not evidence, the jury could have inferred

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that the “other guy” in Butler’s statement
was Priester. But this inference is not a
foregone conclusion. There were at least
fifteen perpetrators in various cars
involved in the shooting. The redacted
statement by Butler is unclear as to the
people in the first car, in the second car,
who was shooting when and from which
car. This is because the trial court
removed not just references to Priester, but
removed references to every name in the
statement, making the statement difficult
to follow.
Subsequent to Bruton, the Supreme
Court held that the introduction of the
redacted statement of a nontestifying co-
defendant was not unconstitutional. It
rejected the contextual implication
argument Priester makes here. It stated
that where ascertaining the identity of a
co-defendant in a redacted statement
requires an inference drawn from linking
other evidence to the statement, the risk
that the jury cannot follow limiting
instructions is not sufficiently substantial
to violate the S ixth Amendment.
Richardson v. Marsh, 481 U.S. 200, 208
(1987) (“Where the necessity of such
linkage is involved, it is a less valid
generalization that the jury will not likely
obey the instruction to disregard the
evidence.”). “In short, while it may not
always be simple for the members of a jury
to obey the instruction that they disregard
an incriminating inference, there does not
exist the overwhelming probability of their
inability to do so . . . .” Id.
Priester argues that the Supreme
Court’s decision in Gray v. Maryland, 523
U.S. 185 (1998), and this court’s decision
in United States v. Richards, 241 F.3d 335
(3d Cir. 2001), clarify the rule set forth in
Richardson in a manner that supports his
argument. We find this unpersuasive. In
the first place, both decisions were
announced after Priester’s merits appeal
was heard in the Pennsylvania Superior
Court and it did not act unreasonably in
failing to predict the Supreme Court’s
decision in Gray. Moreover, the decision
in Gray, even if applicable, does not
support Priester’s contention. The Court
explained in Gray that it “granted certiorari
in order to consider Bruton’s application to
a redaction that replaces a name with an
obvious blank space or symbol or word
such as ‘deleted.’” Gray, 523 U.S. at 188.
It then held that such redactions were
constitutionally impermissible. In
Richardson, the issue was “whether Bruton
requires the same result when the
codefendant’s confession is redacted to
omit any reference to the defendant, but
the defendant is nonetheless linked to the
confession by evidence properly admitted
against him at trial.” Richardson, 481 U.S.
at 202. The Court held that the admission
of the redacted confession was not
unconstitutional.
The Court in Gray explained that
the key difference between Gray and
Richardson was the extent to which the
statement’s alterations directly connected
the statement to the defendant, as
“nicknames and specific descriptions fall
inside, not outside, Bruton’s protection.”
Gray, 523 U.S. at 195. The reasons given
in Gray for holding such redactions

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impermissible – such as “an obvious blank
will not likely fool anyone,” “the obvious
deletion may well call the jurors’ attention
specially to the removed name,” and that
“a blank or some other similarly obvious
alteration” are “directly accusatory,” Gray,
523 U.S. at 193-94 – do not apply to the
instant case. There are no such
“nicknames,” descriptions or phrases that
directly implicate Priester in the instant
case.
Finally, in this court’s Richards
opinion, on which Priester relies, there
were only three people involved in the
case, one of whom was the confessor and
one of whom was the co-defendant
Richards, and the word “friend” was
substituted for Richards’ name. Richards,
241 F.3d at 341. As the prosecutor called
the co-defendant’s mother to testify that
the confessor and co-defendant Richards
were “friends,” the word “friend”
unequivocally pointed to Richards. In
contrast, in this case there were at least
fifteen perpetrators involved in the
shooting, and the phrases “the other guy”
or “another guy” are bereft of any
innuendo that ties them unavoidably to
Priester. In Richards, the replacement was
tantamount to an explicit reference to the
co-defendant; the same cannot be said for
the redaction in the instant case.
Because the trial court redacted the
statement carefully, and because it gave
appropriate limiting instructions before the
admission of the statement and during jury
instructions, the District Court did not err
in holding that the admission of Butler’s
redacted statement did not run afoul of the
Sixth Amendment.
C. Jury Instruction Issue
Priester argues that the District
Court erred in concluding that his trial
attorney’s failure to object to the jury
instructions did not constitute ineffective
assistance of counsel. The parameters of
the Sixth Amendment right of a criminal
defendant to receive effective assistance of
counsel were set forth in Strickland v.
Washington, 466 U.S. 668, 686 (1984). A
defendant claiming a violation of this right
must make a two-part showing:
First, the defendant must
s h o w t h a t c o u n s e l ’ s
performance was deficient.
This requires showing that
counsel made errors so
serious that counsel was not
functioning as the “counsel”
guaranteed the defendant by
the Sixth Amendment.
Second, the defendant must
show that the deficient
performance prejudiced the
defense. This requires a
show ing that counsel’s
errors were so serious as to
deprive the defendant of a
fair trial, a trial whose result
is reliable.
Id. at 687.
“Judicial scrutiny of counsel’s
performance must be highly deferential” to
ensure “the wide latitude counsel must
have in making tactical decisions.” Id. at
689. “[A] court must indulge a strong

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presumption that counsel’s conduct falls
within the wide range of reasonable
professional assistance . . . .” Id.
The portion of the trial judge’s jury
instruction which Priester claims was
misleading was:
[M]urder of the first degree
is a criminal homicide
committed with a specific
intent to kill. An intentional
killing is a killing by means
of poison or by lying in wait
or by any other kind of
willfu l, deliberate and
premeditated act.
Therefore, in order to find
the defendants guilty of
murder in the first degree,
you must find that the
killing was a willful,
deliberate and premeditated
act.
. . . .
Members of the jury, you
may find a defendant guilty
of a crime without finding
that he personally engaged
in the conduct required for
commission of that crime or
even that he was personally
present when the crime was
committed.
A defendant is guilty of a
crime if he is an accomplice
of another person who
commits that crime.
A defendant does not
become an acco mplice
merely by being present at
the scene or merely by
knowing of the crime. He is
an accomplice if, with the
intent of promotion or
facilitating commission of
the crime, he solicits or
commands or encourages or
requests another person to
commit it or if he aids or
agrees to aid or attempts to
aid the other person in
planning or committing it.
Y o u m a y f i n d t h e
defendants guilty of a crime
on the theory that they were
an accomplice as long as
you are satisfied beyond a
reasonable doubt that the
crime was committed and
the defendants were an
accomplice of the persons
who committed it.
Trial Tr. at 564-65, 577-78 (Sept. 19,
1991).
Priester argues that although he was
charged with three different degrees of
homicide, including first degree murder
which requires a specific intent to kill,
Smith v. Horn, 120 F.3d 400, 422 (3d Cir.
1997), “the import of the instruction
regarding the requirement of specific
intent to kill was diluted by the court’s
instr uctions regarding acco mp lice
liability.” Appellant’s Br. at 25. As the
District Court stated:

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Priester claims that
the instruction to the jury
enabled the jury to find him
guilty as an accomplice to
first-degree murder even if
he did not have the intent to
kill. This instruction,
Priester continues, violated
Pennsylvania law – which
makes specific intent to kill
an essential element for
accomplice liability to first
degree murder – and
burdened his fundamental
right under the Due Process
Clause to be convicted only
upon proof beyond a
reasonable doubt of every
element of the offense.
App. at 20 (footnotes omitted). On state
collateral review, the Pennsylvania
Superior Court held that the instructions
were correct as a matter of state law. App.
at 71.
Federal courts reviewing habeas
claims cannot “reexamine state court
determinations on state-law questions.”
Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). This is particularly true in the
instant case because the issue of
a p p r o priate jury instru c t i o n s on
accomplice liability in first-degree murder
trials has been squarely addressed by the
P e n n s y l v a n i a S u p r e m e C o u r t .
Commonwealth v. Thompson, 674 A.2d
217, 222-23 (Pa. 1996) (upholding
accomplice liability instructions nearly
identical to those quoted above);
Commonwealth v. Chester, 587 A.2d
1367, 1384 (Pa. 1991) (same).
Bound by the state court’s
determination that the instruction at issue
comported with state law, it is evident that
Priester cannot satisfy the first component
of a viable ineffective assistance of
counsel claim – that c oun sel’s
performance was deficient. Thus Priester
cannot overcome the “strong presumption”
that his counsel’s conduct fell outside the
“wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689.
III.
CONCLUSION
Applying AEDPA’s deferential
standard in reviewing Priester’s habeas
petition, we hold that the District Court did
not err in concluding that the admission of
the redacted statement comported with the
requirements of the Sixth Amendment and
that trial counsel’s failure to object to the
accomplice liability instruction did not
constitute ineffective assistance of
counsel.
For the reasons given above, we
will affirm the District Court’s order
denying the petition for a writ of habeas
corpus.

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