Rodney Derrickson v. Robert W. Meyers

*Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,
sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4497
RODNEY DERRICKSON,
Appellant
v.
ROBERT W. MEYERS; THE DISTRICT
ATTORNEY OF THE COUNTY OF DELAWARE;
THE ATTORNEY GENERAL OF THE STATE OF
PENNSYLVANIA
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 00-cv-03718)
District Judge: Honorable Charles R. Weiner
Submitted Under Third Circuit LAR 34.1(a)
April 27, 2006
Before: AMBRO and FUENTES, Circuit Judges,
and IRENAS,* District Judge
(Opinion filed May 1, 2006)
OPINION

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1The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 2254
and we have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
2
AMBRO, Circuit Judge
Rodney Derrickson appeals the denial of a writ of habeas corpus by the United
States District Court for the Eastern District of Pennsylvania and alleges ineffective
assistance of both trial and appellate counsel. For the reasons below, we affirm the order
of the District Court.1
I.
As we write solely for the parties, we discuss only those facts necessary to our
decision. Following a hung jury in his first trial, Derrickson was convicted in
Pennsylvania of second degree murder, aggravated assault, reckless endangerment,
possession of an instrument of crime, and robbery. He was sentenced to life
imprisonment.
The following three facts are relevant to this appeal. First, the robbery charge was
initially dismissed following the preliminary hearing, but the Commonwealth filed a
petition for special leave to amend the information, and after a hearing, the charge was
reinstated. The decision to reinstate the charge was not challenged on direct appeal.
Second, at trial the prosecution sought to prove the robbery charge with the
testimony of witness Mark Harris, who stated that Derrickson told the murder victim to
“give me your money.” This statement was inconsistent with Harris’ testimony at the
preliminary hearing, and when confronted, Harris agreed that his prior sworn statements

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were accurate. Harris also suggested that the police detectives had told him what to say
on the stand. Third, during summation the prosecutor stated: “I’m asking you, ladies and
gentlemen, now to follow the example of [a lifelong friend of Derrickson who testified
against him at trial] to do your duty and I ask you to find Rodney Derrickson guilty of
First Degree Murder and Robbery.”
Derrickson alleges ineffective assistance of counsel on three grounds: (1) the
failure to challenge the reinstatement of the robbery charge; (2) the failure to cross-
examine Harris adequately regarding his prior inconsistent statements; and (3) the failure
to object to the prosecutor’s summation. In addition to asserting ineffectiveness on the
part of trial counsel for making these alleged errors, Derrickson also alleges
ineffectiveness on the part of appellate counsel for failing to challenge these errors on
appeal.
II.
To decide this case, we refer to the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), which, in relevant part, provides that
[a]n 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) 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; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1). A state court decision is contrary to Supreme Court precedent

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under § 2254(d)(1) where the state court reached 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.’” Marshall v.
Hendricks, 307 F.3d 36, 51 (3d Cir. 2002) (quoting Williams v. Taylor, 529 U.S. 362, 413
(2000)). A state court decision is an unreasonable application under § 2254(d)(1) if the
court
identifies the correct governing legal rule from the Supreme Court’s cases
but unreasonably applies it to the facts of the particular case or if the state
court either unreasonably extends a legal principle from the Supreme
Court’s precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it
should apply.
Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002). A federal habeas court must presume
that a state court’s findings of fact are correct. See 28 U.S.C. § 2254(e)(1). The
petitioner bears the burden of rebutting the presumption of correctness by clear and
convincing evidence. Id.
Sixth Amendment claims of ineffective assistance of counsel are governed by the
familiar two-prong test of Strickland v. Washington, 466 U.S. 668 (1984). Under the first
prong, Derrickson must show that counsel’s performance was deficient. The proper
standard for attorney performance is that of “reasonably effective assistance” –
Derrickson must show that counsel’s representation fell below an objective standard of
reasonableness considering all the circumstances. Strickland, 466 U.S. at 687-88.
Counsel’s reasonableness must be assessed on the facts of the particular case, viewed as

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2Former Rule 229, renumbered Rule 564 and amended March 1, 2000, effective
April 1, 2001, states that
[t]he court may allow an information to be amended when there is a defect
in form, the description of the offense(s), the description of any person or
any property, or the date charged, provided the information as amended
does not charge an additional or different offense. Upon amendment, the
court may grant such postponement of trial or other relief as is necessary in
the interests of justice.
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of the time of counsel’s conduct. Id. at 689. Strickland’s second prong requires the
defendant to show that “the deficient performance prejudiced the defense.” Id. at 687.
The prejudice component requires Derrickson to show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.
III.
1. Reinstatement of the Robbery Charge
Derrickson argued that the trial court did not have jurisdiction to reinstate a charge
not proven at the preliminary hearing, and thus it was unreasonable for his attorney not to
challenge the robbery charge on appeal. The Superior Court recognized that a challenge
to an amended information must be analyzed under Pennsylvania Rule of Criminal
Procedure 229,2 which appears to prohibit the addition of a new charge. The Court noted,
however, that Pennsylvania case law has interpreted this rule in light of its fundamental
purposes: to place a defendant on notice of the criminal conduct of which he is accused
and to avoid prejudicing his defense by the last-minute additions of substantive changes

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of which he is uninformed. See Commonwealth v. Grekis, 601 A.2d 1284, 1289 (Pa.
Super. Ct. 1992). Thus, where the initial information charges an offense that involves
“the same basic elements and evolved out of the same factual situation as the crimes
specified in the amended indictment or information, . . . the defendant is deemed to have
been placed on notice regarding his alleged criminal conduct.” Commonwealth v.
Stanley, 401 A.2d 1166, 1175 (Pa. Super. Ct. 1979).
The Superior Court found that, inter alia, the robbery charge arose out of the same
set of facts as the murder charge, and Derrickson had five months from the date of the
hearing where the robbery charge was reinstated to prepare for trial. Accordingly, there
was sufficient notice of the charges and no eleventh-hour additions. Moreover, the Court
concluded that Derrickson was not prejudiced by the amendment because his defense to
the murder charge, an alibi, was equally applicable to the robbery charge. The Superior
Court concluded that a direct appeal of the issue would have been meritless and thus,
Derrickson’s counsel was not ineffective for failing make such an appeal.
We affirm the District Court’s conclusion that this decision was not contrary to, or
an unreasonable application of, federal law. Specifically, in light of the conclusion that
an appeal of the robbery charge reinstatement would have been without merit, the holding
that the failure to raise the issue could not constitute ineffective assistance was not an
unreasonable application of Strickland. Trial counsel cannot be deemed ineffective for
failing to pursue a meritless claim. Parrish v. Fulcomer, 150 F.3d 326, 328 (3d Cir.
1998).

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2. Cross-Examination of Harris
Derrickson argued that trial counsel should have explored, through cross-
examination, the claim that Harris had been coached. The Superior Court concluded that
Derrickson’s claim failed to satisfy the requirements of Commonwealth v. Roberts, 681
A.2d 1274, 1276 (Pa. 1996), in that he had not shown how he was prejudiced by
counsel’s cross-examination as conducted. The Court found there was no reason to
question Harris regarding possible coaching because (a) there were other eyewitnesses
who testified that Derrickson shot the victim, (b) when confronted with his previous
testimony, Harris admitted that it was accurate, and (c) the conflicting statements were
brought to the jury’s attention and it chose to believe the inculpatory testimony.
We affirm the District Court’s conclusion that this decision was not contrary to, or
an unreasonable application of, federal law. The Superior Court’s test for prejudice is
indistinguishable from the prejudice analysis in Strickland. See 466 U.S. at 687.
Moreover, in light of the state court’s determination that there were other eyewitnesses to
the murder and Harris admitted his prior testimony (inculpating Derrickson) was accurate,
the finding of no prejudice was not an unreasonable application of Strickland. Id. at 664
(requiring defendant to show “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different”).
3. The Prosecutor’s Summation
Derrickson argued that the prosecutor’s closing comment was a misstatement of
the duty of the jury and deprived him of a fair trial. The Superior Court cited

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Commonwealth v. Young, 692 A.2d 1112, 1116 (Pa. Super. Ct. 1997), for the proposition
that a prosecutor’s comments cannot constitute reversible error unless they “mislead or
inflame the jurors” such that they cannot render a “dispassionate verdict.” The Court
found that the prosecutor was simply requesting the jury to do their duty of rendering a
fair and impartial verdict, and that the comment did not “mislead or inflame” the jurors.
We affirm the District Court’s conclusion that this decision was not contrary to, or
an unreasonable application of, federal law. The standard applied by the Superior Court
was consistent with Supreme Court’s holding that, in considering whether prosecutorial
comments are reversible error, the “question is whether the prosecutors’ comments so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks and
citations omitted); see id. at 181-82 (finding no error when “prosecutors’ argument did
not manipulate or misstate the evidence, nor did it implicate other specific rights of the
accused”). Furthermore, Derrickson has not presented any evidence that the Superior
Court’s conclusions as to the import and influence of the prosecutor’s statements were
incorrect.
* * * * *
For the reasons stated herein, we affirm the order of the District Court denying
Derrickson’s petition for a writ for habeas corpus.

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