Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-14-1996

Berryman v. Morton
Precedential or Non-Precedential:

Docket 95-5468




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                                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                            No. 95-5468



                            EARL BERRYMAN

                                 v.

            WILLIS MORTON, Administrator, New Jersey
             State Prison, Trenton, New Jersey, and
            PETER VERNIERO, Attorney General of the
State of New Jersey

                                 Appellants


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY GRANTING A WRIT OF
HABEAS CORPUS



(Civil No. 94-3828 (DRD))


Argued February 8, 1996
Before: BECKER, ROTH and McKEE, Circuit Judges


(Opinion filed: November 14, 1996)




                                PETER VERNIERO, ESQ.
                                Attorney General of New Jersey
                                LINDA K. DANIELSON, ESQ. (Argued)
                                Office of Attorney General of

                                New Jersey
                                Department of Law & Public Safety
                                CN 086
                                Division of Criminal Justice
                                Richard J. Hughes Justice Complex
                                Trenton, New Jersey 08625

                                Attorneys for Appellants
                             JEAN D. BARRETT, ESQ. (Argued)
                             Ruhnke & Barrett
                             20 Northfield Avenue
                             West Orange, NJ 07052

                             Attorneys for Appellees




                       OPINION OF THE COURT




McKEE, Circuit Judge
     Willis Morton, Administrator of the New Jersey State Prison
at Trenton, and Peter Verniero, Attorney General of the State of
New Jersey, appeal the district court's order granting a writ of
habeas corpus to appellee, Earl Berryman. The district court
granted the writ based upon its determination that Berryman had
been denied effective assistance of trial counsel. For the
reasons set forth below, we will affirm.

                                I.
     March 11, 1983 was Alice Campos' eighteenth birthday.
According to Campos, she and her friend, Christina Dos Santos,
went to a club called "Studio One" in Newark, New Jersey, where a
group of between 15 and 20 friends joined them to celebrate
Campos' birthday. At approximately 2:30 a.m. on March 12, Campos
and Dos Santos left the club, and Campos drove Dos Santos to the
Irvington, New Jersey home of Dos Santos' mother, where Campos
dropped Dos Santos off.
     Shortly after driving away, Campos stopped at a traffic
light and a man whom she later identified as Michael Bunch forced
his way into her car. According to Campos' subsequent trial
testimony, Bunch put a knife to her throat and forced his way
into the driver's seat. Bunch then told Campos to remove her
stockings. Campos responded by removing her panty hose and
handing them to Bunch.
     Bunch then opened the front passenger door and a man Campos
later identified as Anthony Bludson got in and sat next to
Campos. Bunch took $35 from Campos' purse, and ordered "[d]on't
think about running because my friend got a gun." Campos then
heard what she thought was the "click" of a gun; however, she
never saw a gun.
     Bunch and Bludson drove to a nearby supermarket parking lot
where a man Campos later identified as petitioner, Earl Berryman,
was waiting in a blue car. Campos was ordered to get into the
rear seat of the blue car which Bunch then drove while Berryman
sat in the front passenger seat, and Bludson sat in the rear with
Campos. Campos testified that she could see the faces of all
three men. According to her testimony, Berryman's face was only
six to eight inches away as she was getting into the blue car.
In her initial statement to police, however, Campos said she was
blindfolded with her stockings after Bunch and Bludson got into
her car, and before they were joined by the male identified as
Berryman.
     The trio drove Campos around for about two hours. They made
her lie down on the floor of the back of the car that entire
time. Finally, the car stopped at a "burned-out" building, and
the three carried Campos inside. Once inside the building they
made her remove her clothes and lie down on a mattress. Each of
the three men then took turns raping her.
     According to her testimony, after the sexual assault, the
three men ordered her to get dressed, and Bludson put a knife in
her back and walked her back to the blue car. They all got in,
and Bunch drove the entire group back to Campos' car. There,
Campos was released, and the three men drove away.
     Later that same morning, at approximately 6:00, Campos
returned to Dos Santos' house, and told Dos Santos and Dos
Santos' mother what had happened. Campos testified that she was
ashamed, frightened, and hysterical. Because she was so upset and
because she did not think she could report the incident until the
next business day, she did not report the rape for two days.
     When she did contact the police on Monday, March 14,
Detective Samuel Williams of the Irvington Township Police
Department had her look through photographs of Black males
arranged alphabetically by last name (the names were not visible
to Campos) in "sleeves", or "books". Each book contained
approximately 100 to 150 photographs. Campos looked at all of
the photographs in the first sleeve that contained only
photographs of Black men whose last name began with "A". She was
unable to identify anyone, and proceeded to the "B" sleeve. She
selected the photographs of Earl Berryman, Michael Bunch and
Anthony Lee Bludson from that book. Campos did not look at any
more photographs because she appeared to have identified all
three of her attackers from the "B" sleeve. Thus, she never saw
police photos of anyone whose last name ended in the letters "C"
through "Z".
     That same day, Campos was examined by Ingrid Brown, M.D.
Dr. Brown found physical evidence consistent with rape, and also
discovered that Campos was infected with vaginal and rectal
gonorrhea. Campos did not have gonorrhea before the assault. Dr.
Brown did not attempt to use a "rape kit" to retrieve traces of
any excretions that could have identified the attackers because
of the amount of time that had passed since the assault.
     Based upon Campos' identifications, Detective Williams sent
letters to the last known address of Berryman, Bunch and Bludson,
but Berryman's letter was returned to the police by the post
office on March 17, 1983.
     Despite repeated requests from Detective Williams, Campos
did not return to police headquarters to sign a complaint until
April 21, 1983. In the meantime, Detective Williams did nothing
further to ascertain where Berryman lived, and he apparently
investigated the matter no further. Williams testified that he
took no further action because his superior, Sergeant Michael
Tomich, told him to "lay off" the rape investigation. Bunch was a
suspect in an unrelated, but ongoing, bank robbery/homicide
investigation which had taken place two days after the rape, and
Detective Tomich apparently hoped that Bunch would incriminate
himself in the more serious homicide if he remained on the
street.
     More than a year passed before the police tried to arrest
anyone. Finally, on January 19, 1984, Berryman, Bludson and
Bunch were named in a seven-count indictment and charged with
various offenses stemming from the kidnapping, and assault of
Campos. Bludson's trial was severed from the joint trial of
Berryman and Bunch. Bludson went to trial first, and had to be
tried twice because his initial trial ended with a hung jury and
a mistrial. His second trial resulted in an acquittal.
     Berryman and Bunch went to trial in March of 1985. Their
first trial also ended in a mistrial when a juror disclosed her
improper discussions with fellow jurors. The retrial began
immediately, and concluded with the conviction of both Berryman
and Bunch. Berryman was sentenced in July of l985 to an aggregate
term of imprisonment of 50 years with a parole ineligibility
period of 25 years.
     At his trial, Berryman denied participation in the crime. He
took the stand in his own defense and testified that he had
neither a driver's license nor car, and that he had never met
Bunch nor Bludson. Berryman had a steady employment history and
had not previously been indicted. His conviction rested entirely
upon Ms. Campos' uncorroborated identification.
     Campos had testified at both of Bunch's trials before
testifying against Berryman and Bludson. Her testimony at the
Bunch trials differed from the descriptions she gave in
Berryman's trial, yet, Berryman's attorney did not use the prior
inconsistent testimony to cast doubt upon Campos' identification.
He also failed to call either Bludson or Dos Santos as defense
witnesses. Berryman's attorney did, however, manage to elicit
testimony that allowed the jury to discover that Bunch was under
investigation for a bank robbery homicide which tended to
associate Berryman with that investigation, and with Bunch.

                               II.
     Berryman and Bunch appealed their convictions to the
Appellate Division of the Superior Court of New Jersey. They
alleged that the trial court had improperly admitted evidence of
the unrelated homicide investigation, and that they had been
denied the effective assistance of trial counsel. However, the
Appellate Division affirmed the trial court's determination that
defense counsel had opened the door to the admission of the
testimony regarding the unrelated bank robbery homicide
investigation. The Appellate Division also held that any
evidence as to why Bludson was not called as a witness was
outside the scope of the record. However, the court allowed
issues relating to trial counsel's effectiveness to be raised in
a motion for post-conviction relief. Further direct review of
the conviction was apparently not sought.
     Berryman and Bunch then filed petitions for post-conviction
relief, alleging ineffective assistance of counsel. Berryman
argued that his counsel had been ineffective (1) in failing to
use Campos' inconsistent identification testimony from the
Bludson trial; (2) in opening the door to the admission of
testimony concerning the bank robbery homicide investigation of
Bunch; and (3) in failing to call Bludson and Dos Santos as
defense witnesses.
     Berryman's trial attorney testified at a hearing that was
held on the post-conviction petition, and explained his reasons
for conducting Berryman's defense as he had. The post-conviction
hearing court thereafter issued an oral opinion in which it found
that trial counsel had made a reasonable investigation to
determine the location of Bludson; that the determination not to
call Dos Santos as a witness had been a strategic one; that
Campos' inconsistent testimony at the Bludson trial would have
been insignificant, and in any event, that failure to impeach her
with it had been an appropriate strategic choice by defense
counsel; and that counsel's actions in opening the door to the
bank robbery homicide investigation of Bunch also had been a
reasonable trial strategy. The court further concluded, as to
each allegation of ineffectiveness, that even if the performance
had been deficient, the deficiency did not deprive Berryman of a
fair trial. The Appellate Division affirmed in an unpublished
written opinion, New Jersey v. Berryman, A2388-91T5 (App. Div.
May 20, 1993) (hereinafter referred to as "slip opinion"), and
the New Jersey Supreme Court denied certification.

                               III.
     Berryman filed a petition for a writ of habeas corpus in the
district court for the district of New Jersey pursuant to 28
U.S.C. § 2254. The district court summarized Berryman's claim
of ineffectiveness as follows:
                    petitioner's counsel Nicholas DePalma
                     (i) on cross-examination of Campos failed to
                    avail himself of prior testimony which would
                    have cast serious doubt upon Campos' ability
                    to identify petitioner, (ii) failed to
                    investigate and use two witnesses who could
                    have cast further doubt on Campos' testimony,
                    and (iii) asked questions on cross-
                    examination and called a witness knowing that
                    these actions would bring to the jury's
                    attention the fact that co-defendant Bunch
                    was under investigation for homicide/bank
                    robbery.

          Dist. Ct. Op. at 6-7.
     The standard for reviewing a claim of ineffective assistance
of counsel is set forth in Strickland v. Washington, 

(1984):

          First, the defendant must show that counsel'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
          showing that counsel's errors were so serious
          as to deprive the defendant of a fair trial,
          a trial whose result is 

. In essence, "the defendant must show that
counsel's representation fell below an objective standard of
reasonableness" meaning "reasonableness under prevailing
professional norms." 

Our review of the district
court's decision is plenary. Reese v. Fulcomer, 

,
253 (3d Cir. 1991), cert. denied, 

(1992).
However, our evaluation of counsel's performance is "highly
deferential" as a reviewing court must make "every effort to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate
the conduct from counsel's perspective at the time." 

We "must indulge a strong presumption that counsel's conduct
falls within a wide range of reasonable professional assistance."

to say, the "defendant must overcome the presumption
that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" 

v.
Louisiana, 

, 101 (1955).
                               IV.
     28 U.S.C. § 2254 governs federal habeas corpus proceedings
instituted by state prisoners. After Berryman filed his
petition, 28 U.S.C. § 2254 was amended. The effect of these
amendments on Berryman's petition is discussed below. However,
since a traditional section 2254 analysis is helpful to an
understanding of the effect of the amendment, we begin with a
discussion of the relevant law at the time Berryman filed his
petition.
     When Berryman filed his petition in the district court, the
habeas statute provided that state court findings of fact were
presumed correct if the following requirements were met: (1) a
hearing on the merits of a factual issue, (2) made by a state
court of competent jurisdiction, (3) in a proceeding to which the
petitioner and the state were parties, (4) evidenced by a written
finding, opinion or other reliable and adequate written indicia.
28 U.S.C. § 2254(d); Reese v. Fulcomer, 

, 254 (3d
Cir. 1991), cert. denied, 

(1992). Where these
requirements are met, "'the underlying facts about counsel's
performance are entitled to the presumption of correctness under
28 U.S.C. § 2254(d), if fairly supported by the record.'" 

It is only where the state court's factual
determinations are not fairly supported by the record, that the
presumption of correctness does not apply. 28 U.S.C. §
2254(d)(8). Section 2254(d) "'reflect[ed] a clear congressional
policy favoring deference to state findings of fact absent good
cause for rejecting such findings.'" 

(quoting Nelson
v. Fulcomer, 

, 932 (3d Cir. 1990)).
     Factual issues are "basic, primary or historical facts:
facts 'in the sense of a recital of external events and the
credibility of their narrators. . . .'" Townsend v. Sain, 

, 309 (1963)(quoting Brown v. Allen, 

, 506
(1953)). It is these "factual issues" to which the statutory
presumption of correctness predominately relates. Thompson v.
Keohane,     U.S.    , 

, 464 (1995). "[A] trial
court is better positioned to make decisions of this genre, and
[the Supreme Court] has therefore accorded the judgment of the
jurist-observer presumptive weight." 

.
(Citations omitted and internal quotation marks omitted).
     In a state prisoner's habeas petition alleging ineffective
assistance of counsel, state court findings of fact made in the
course of determining an ineffectiveness claim are subject to the
deference requirement of § 2254(d), so long as they are fairly
supported by the record. Strickland v. 

; McAleese v. Mazurkiewicz, 

, 166 (3d Cir.), cert.
denied,     U.S.    , 

(1993)(state court findings
of historical fact made in the course of deciding an
ineffectiveness claim are presumptively correct if they meet the
requirements of 28 U.S.C. § 2254(d)).
     However, a state court's conclusion that counsel rendered
effective assistance "is not a finding of fact binding on the
court to the extent required by 28 U.S.C. § 2254(d)." 

not a question of historical fact. 

earlier, an inquiry into effectiveness of counsel under
Strickland has two components, performance and prejudice, and it
is a mixed question of law and fact. Id.; see also Reese v.
Fulcomer, 

, 254 (3d Cir. 1991), cert. denied, 

(1992). Therefore, an ineffectiveness claim "require[s]
the application of a legal standard to the historical-fact
determinations." Townsend v. 

n. 6. In
brief, the "'ultimate question'" of counsel's effectiveness is
"outside of § 2254's domain because of its 'uniquely legal
dimension.'" 

.
     Applying these principles to a Strickland ineffectiveness
analysis, it is apparent that a state court's finding that
counsel had a trial strategy is a finding of fact to which the
habeas court must afford the presumption of correctness if that
factual finding is supported by the record. However, the
question of whether counsel's strategy was reasonable goes
directly to the performance prong of the Strickland test, thus
requiring the application of legal principles, and de novo
review.
                    This Court's review of an ineffective
                    assistance of counsel claim is de novo
                    because it is a mixed question of law and
                    fact. Subsidiary factual questions found by
                    state courts are entitled to a presumption of
                    correctness under 28 U.S.C.A. § 2254(d). The
                    question of whether a decision was a tactical
                    one is a question of fact. . . . However,
                    whether this tactic was reasonable is a
                    question of law, and we owe neither the
                    district court nor the state court any
                    deference on this point.

Horton v. Zant, 

, 1462 (11th Cir. 1991) (citations
omitted).
     Here, a state court has already determined that trial
counsel's conduct of petitioner's defense was based upon a trial
strategy, and that the strategy was reasonable. The district
court's thoughtful and thorough opinion can be interpreted as
holding that trial counsel had no trial strategy at all. However,
it can also be read as concluding that counsel did have a
strategy, but the state court erred in holding that it was
reasonable. We conclude that no matter which way the opinion is
read, the district court's ruling must be affirmed under a
traditional § 2254 analysis.

                                V.
     In discussing trial counsel's explanation for his
"stewardship" of defendant's defense, the district court stated
"[f]or counsel to rest on a 'strategy' necessitates the existence
of one. This case lacked strategy." Dist. Ct. Op. at 14. We
believe that the state court's contrary conclusion that Mr.
Berryman's trial attorney did have a trial strategy is not
supported by the record. The Appellate Division summarized the
defense strategy as follows: "[t]he defense theory was generally
that the victim was really not telling the truth about the rape
and surrounding events and that even the police did not believe
her." Slip. Op., at 12. Thus, that court reasoned that attempts
to impeach the victim on discrepancies in her descriptions "would
not have promoted the defense theory that the rape probably did
not occur," 

and defense counsel could not be faulted
for failing to call Bludson because "the height discrepancy would
not be persuasive to the jurors and . . . Bludson['s] testimony
would not support the defense theory." 

To the extent
that this conclusion is based upon a finding of fact that trial
counsel actually had a theory or strategy, we must also afford it
deference as "section 2254 makes no distinction between the
factual determinations of a state trial court and those of a
state appellate court." Dickerson v. Vaughn, 

, 90 (3d
Cir. 1996). However the state court's finding that Mr. DePalma
based his defense on the "theory" that Ms. Campos was fabricating
the rape, is belied by the record. The district court correctly
noted:
                    Mr. DePalma's post-trial testimony confirms
                    that there was no trial strategy. When
                    questioned on his theory of the case, he
                    replied, 'Theory of the case. . . there was
                    no real theory.' Again,

                    Q: Is it your practice to develop theory of
                    your defense prior to opening to a jury in a
                    case?

                    A: Not a theory of my defense, but a game
                    plan.
                    Then he claimed he had three theories: '[I]f
                    you want to use the term theory, I had three
                    theories, the identification was a theory, .
                    . .the investigation was theory. . .and I
                    don't know whether there was something third
                    in there, but in my mind I think there was.'
                    Finally, he believed that there was 'no value
                    to choosing a theory, and proceeding.'

Dist. Ct. Op. at 13-14. (emphasis added). Moreover, the record
of the trial corroborates that Mr. DePalma's conduct of
Berryman's defense was not guided by any strategy or theory. In
his closing, Mr. DePalma did suggest that Ms. Campos fabricated
the rape: "[h]ow do we know she was raped? How do we know she
didn't consent to the sexual affair?" Dist. Ct. Op. at 36. Yet,
seconds later, in the same summation he argued: "[l]adies and
gentlemen, she is not lying. The defense isn't alleging that she
is lying to you," 

then proceeded to cast doubt upon
the accuracy of the identification. Although an attorney can
certainly make alternative arguments to a jury, Mr. DePalma's
arguments were not in the alternative, they were unguided, and
inept shots at anything that moved, or that appeared to move,
with no apparent purpose, thought, or strategy.
                       During the trial he continued to lose
                    credibility. He tried to discredit a
                    disinterested doctor. During cross-
                    examination he implied that evidence was
                    destroyed. . . During the summation he
                    stated: '[t]he only thing is when you ask her
                    [the physician] about the investigation,
                    she's giving you a runaround.' . . .
                       For counsel to rest on ‘strategy'
                    necessitates the existence of one. This case
                    lacked strategy. Instead, it was a 'useless
                    charade.' U.S. v. Cronic, 

, n.
                    19. (1984). . . .
                      Having no trial strategy, defense counsel
                    improvised as they went along, proceeding
                    from blunder to blunder with disastrous
                    consequences.

          Dist. Ct. Op. at 20 (emphasis added). We agree.
     However, the district court's opinion can also be
interpreted as holding that trial counsel had a strategy, but
that it was not a "sound strategy." The court stated: "[b]ut no
sound strategy existed in this case", and " []petitioner's
counsel's post-trial testimony only confirms that there was no
'sound trial strategy.'" Dist. Ct. Op. at 13.
     Assuming arguendo that the district court intended its
conclusion that Mr. DePalma lacked a "sound" strategy to mean
that he had no "reasonable" strategy, we will inquire to see if a
different result is required under traditional habeas analysis.
In doing so we assume that the record does support the state
court's finding of a trial strategy. For purposes of our
analysis we will interpret Mr. DePalma's "game plan" as the
equivalent of a trial strategy and proceed with our inquiry under
§ 2254.   However, as discussed above, the parameters of this
inquiry are not limited by the presumption of correctness
afforded factual findings required by 28 U.S.C. § 2254. That
presumption does not attach to legal conclusions resulting from
resolution of factual issues. Once counsel is found to have had
a strategy, the reasonableness of that strategy is a mixed
question of fact and law to which the presumption of correctness
does not attach.
     Here, the state argues that the state court found that
Berryman's trial counsel had a strategy or "theory of the case,"
that he made tactical decisions throughout the trial in
furtherance of that strategy, and that the strategy was
reasonable. The state relies upon the presumption of correctness
to strenuously argue that the state court findings of fact,
including findings of the reasonableness of counsel's trial
strategy, are supported by the record and consequently are
presumptively correct.
     The state's argument, however, confuses the findings of
historical fact to which we must defer, with conclusions of law
that we afford a plenary review. The later goes directly to the
performance prong of the Strickland test, thus requiring the
application of legal principles.
Horton v. 

. Assuming that the state court
correctly found that trial counsel had a strategy, we find that
it erred in its legal conclusion as to the reasonableness of Mr.
DePalma's "strategy" as to each of the grounds set forth in
Berryman's petition.
     A. Failure to use inconsistent identification testimony.
     Berryman's conviction rested solely on the victim's
uncorroborated out-of-court identification, and her in-court
identification two years later.   As noted above, this case
resulted in a total of four trials. Bludson was tried twice (and
was ultimately acquitted), and Berryman and Bunch were jointly
tried twice. In each trial, Campos testified that the defendants
played the following roles:
     Bunch -- the first man with the knife who forced his way
              into her car at the traffic light.

     Bludson -- the second man to get into her car at the traffic
                light.

     Berryman -- the third man who waited in the blue car at the
                 supermarket parking lot.
The height of the three defendants is critical. Bunch, at 6'4" is
the tallest. Berryman is next and is of average height at 5'10".
Bludson is the shortest at 5'5". Thus Berryman is nearly half a
foot taller than Bludson, and half a foot shorter than Bunch.
Bunch, in turn, towers over Bludson, as he is nearly a full foot
taller.
     In the first Bludson trial, Campos testified that Bunch, the
man with the knife, was approximately 5'11". At that same trial,
Campos testified that Bludson, the short man, was 5'10" and was
the same size as Bunch. She described Berryman as being the
shortest.
     In the second Bludson trial, apparently realizing the
problems with her identification testimony, Campos retreated from
that testimony and was effectively cross-examined on that issue.
Because it goes to the heart of our analysis, we review that
testimony at some length.

          Q: Well, how tall was the man with the
          knife? [Bunch]

          A: I can't tell you how tall he was. I know
          he was the tallest. He wasn't that tall but
          he was taller than both of them, than him and
          the other one.

          Q: The second man who got in the car, how
          tall was he?

          A: The second man?

          Q: Yes.

          A: That's him.

          Q: How tall was he?

          A: I don't know.   I don't know.   I can't tell
          how tall he was.

          Q: Before today you have been asked how tall
          he was, haven't you?

          A: Right.

          Q: And haven't you said about 5'10"?

          A: Yes, I told you that, 5'8", 5'10", I am
          not sure if he's that height.

          Q: And didn't you say that the first man was
          about 5'11"?

          A: About that.

          Q: And the third man --

              [interruption by the Court]

          Q: And the third man, you said was about
          5'4"?

          A: The third?
Q: Yes, the third man.

A: The third man. I don't know what I said
how tall he was because I told him before and
I'm telling you right now I don't know.

Q: Weren't the first and second men about the
same size, about 5'10", 5'11"?

A: The first man --

    [lengthy objection by the State
    which is overruled by the Court]

Q: Were not the first man with the knife and
the second man who got in the car, weren't
they about the same height, about 5'10",
5'11"?

A: The both of them that got in the car
first?

Q: Yes.   The two men that got in the car
first.

A: No. The other one was a little bit taller
than him. Not much but he was the tallest,
like I said.

Q: Well, do you recall we had a hearing back
on July 17 and you were in a courtroom like
this and we had a hearing?

A: Yes.

Q: Do you recall being asked 'Was he taller
or shorter than the man with the knife?' Do
you remember being asked that question?

A: Yes.

Q: And do you remember answering, 'I think
the same size.'

A: No, I never said that -- I said he was the
tallest, the other one maybe I said the same
size but I never said he was -- I remember
what I said.

Q: And the third man was much shorter than
those two, is that right?

A: The third guy?
          Q: Yes.

          A: Yes.

          Q: And do you remember at that hearing you
          testified when you said how tall he was?

          A: Yes.

          Q: And I think you said 6 feet.

          A: I told you about 6 feet.   I don't know.

          Q: And stand up, Mr. Bludson. How tall did
          you say -- I asked you how tall Mr. Bludson
          was?

          THE COURT: You mean as she views him standing
          now?

          DEFENSE COUNSEL: Yes.

          A: I told you I don't know but I said -- I
          remember I said about 5'9", 5'10".

          Q: Well, looking at him now, how tall do you
          think he is?

          A: 5'7".   I don't know.   I don't know.

(A16-18).
     The district court noted that the descriptions of the three
men given by Campos in the second Bludson trial differed
radically from the actual height of each man, and differed from
the identification testimony she gave at the first Bludson trial.
Dist. Ct. Op. at 18. The court further noted that despite the
inconsistencies in Campos' descriptions, "petitioner's counsel
never attempted to use the prior testimony to impeach Campos'
identification of Berryman at the second trial. 

     Incredibly, when trial counsel explained his failure to use
the inconsistent testimony to impeach Campos' identification of
Berryman he said that it as a "minor one" because "[t]here were
a lot of major and substantial discrepancies in her story." 

district court correctly noted, that explanation "simply
does not wash."
          Petitioner's counsel had in his hands
          material for a devastating cross-examination
          of Campos on the critical issue in the case.
          Because of his failure to confront her with
          her prior sworn testimony, the jury did not
          learn that she had previously described the
          height of her attackers under oath, that she
          had previously recanted prior testimony given
          under oath and that her prior descriptions
          were very different from her testimony at the
          Bunch/Berryman trial.

The district court correctly ruled that the state
appellate court erred in minimizing the importance of this
discrepancy. The Appellate Division held "[w]e conclude [that the
lower court's] ruling has a reasonable basis in the record and
that the failure to emphasize the victim's discrepancies
regarding the height of her assailant. . . was neither fatally
deficient nor prejudicial." (slip op. at 23). The district
court concluded "[t]here is no way in which the failure to
confront Campos with her prior inconsistent identification
testimony can be justified as sound trial strategy or a
reasonable strategic choice. It was an error of law for the
state courts to have so held." Dist. Ct. Op. at 22. Indeed, it
borders on the inconceivable that a trial attorney would fail to
inform a jury of Ms. Campos' prior problems with this
identification whether or not he or she was also arguing that the
rape had been fabricated. The reliability of this victim's
uncorroborated identification of Berryman cuts directly to the
heart of the only evidence against Berryman. Mr. DePalma failed
to use it. That failure simply can not be condoned as reasonable
trial strategy. The district court correctly concluded that it
was wholly unreasonable.
     B. Opening the Door to the Homicide and Robbery.
     Detective Williams testified at the first Bunch\Berryman
trial. He told the jury about Campos' statement describing the
attack, and the circumstances under which she selected the
photographs of Bunch, Bludson, and Berryman. Williams' only
other involvement had been to send the letters to the last known
address of each defendant.
     On cross-examination, counsel for both Bunch and Berryman
decided to attack the lack of any thorough police investigation
presumably to raise an inference that the police did not believe
Campos. Proceeding down that road, Mr. DePalma asked Williams
why he did not try to locate the defendants. Williams responded
that a sergeant told him that one of the defendants was the
subject of another investigation and that he should "lay-off."
     Predictably, the prosecutor seized this opportunity on re-
direct by asking Williams who and what was being investigated,
and Williams told the jury that Bunch was a suspect in a
homicide/bank robbery. Both defense counsel moved for a
mistrial, but that motion was denied because defense counsel had
opened the door. Mr. DePalma then called Sergeant Tomich as a
defense witness, and Tomich confirmed that he told Williams to
lay-off. In response to the prosecutor's questions, Detective
Tomich testified that the other investigation was a joint one,
involving the FBI; that three men were alleged to have committed
the homicide; and that Bunch's brother, Barry, had already been
convicted of the crimes. Defense counsel again greeted the
fruits of his labors with a motion for a mistrial, which was
denied as before.
     As noted above, that first Bunch/Berryman trial ended in a
mistrial because of juror misconduct. In the second trial, which
began immediately, having learned absolutely nothing from the
judge's rulings in the first trial, Mr. DePalma once again asked
Williams why he had done nothing to pursue the investigation once
the letter addressed to Berryman was returned by the post office.
Counsel also attempted to elicit on cross examination that
Williams was "skeptical of the circumstances that [the victim]
was telling [him]." An objection to that question was sustained
and counsel then asked whether Williams had "any personal
attitude as to what [the victim] was telling [him]."
     On re-direct, the prosecutor argued that defense counsel had
once again opened the door. The trial court agreed, but
commendably sought to ameliorate the prejudice that could flow
from the line of questioning Mr. DePalma was insisting upon. The
court ruled that Williams could only testify that the reason was
the existence of another, unspecified, investigation involving
Bunch which was unrelated to the sexual assault charge. Aware of
the precipice that Mr. DePalma was marching toward, the trial
court also warned the prosecutor and the detective not to bring
out the fact that the other investigation involved a murder.
Williams then testified in accordance with the limitations
imposed by the trial court.
     Despite the trial judge's laudable attempt to shield the
jury from unduly prejudicial information, Mr. DePalma obliviously
pursued a line of re-cross examination designed to suggest that
Williams would not lay-off an investigation involving crimes as
serious as rape and kidnapping. He did this even though he had
just sat through a trial where this strategy had elicited
testimony so damaging that he thought a mistrial was warranted.
In order to counter the insinuations of Mr. DePalma's questions
the prosecution sought, (to no one's surprise but Mr. DePalma's)
and received, the court's permission to explain. Mr. DePalma's
examination of Detective Williams therefore forced the trial
judge to allow the jury to hear the very information the judge
had tried to shield them from, and the witness testified that the
other investigation involved a bank robbery and a homicide.
     Amazingly, apparently content with the progress of his "game
plan," Mr. DePalma once again called Detective Tomich as a
defense witness, and Tomich once again testified that the
investigation of Bunch was still open; that Bunch's brother had
already been convicted, but that two other suspects remained at
large; that Bunch had not been charged because Tomich felt that
he did not have enough evidence; and that Bunch would always be
considered a prime suspect in the bank robbery\homicide.
     On direct appeal, the Appellate Division rejected the
argument that the trial court erred in admitting this testimony
because defense counsel's line of questioning invited the
prejudicial testimony. At the post-conviction hearing, the state
court concluded that Berryman's counsel had made a tactical
decision to open the door to the bank robbery/homicide, opining
that the decision was a "strategy to show the lack of police
investigation so as to nullify the good affect (sic) the victim
had on the jury." A114. That ruling was affirmed on appeal.
     The district court disagreed. Trial counsel had conceded
that it was risky to have "played with" this testimony. When
asked to confirm that he had not intentionally opened the door to
the prejudicial testimony he responded, "[n]o, but I played with
it, lets put it that way." The prosecutor then stated, "[y]ou
were taking a tremendous risk?" to which Mr. DePalma responded,
"[r]ight." Dist. Ct. Op. at 29.
     Indeed, it was foolhardy, and the district court correctly
concluded that "it must rank as a striking instance of
ineffective assistance of counsel." 

Berryman's
attorney "proceeded relentlessly to elicit the irrelevant
testimony that was so damaging to his client." 

     C. Failure to investigate potential defense witnesses.
     The district court held that both Bludson, and Ms. Dos
Santos could have discredited Campos' testimony, and counsel had
no sound strategy to justify not using their testimony. Dos
Santos testified at the post conviction hearing that she and
Campos were alone at the club and not with 15 to 20 other people
as Campos said. In addition to minor discrepancies, Dos Santos
contradicted Campos' testimony that she had nothing to drink at
the club. Dos Santos testified that Campos had one or two beers
while they were there.
     Dos Santos was never contacted by defense counsel, or anyone
acting on his behalf in preparation for trial. Mr. DePalma
explained that his investigation of Dos Santos consisted of
unsuccessfully attempting to subpoena her during the course of
the trial. He never spoke to her and never sent an investigator
to look for her. The state post-conviction court concluded that
Mr. DePalma's actions regarding Ms. Dos Santos were reasonable
because he was concerned her testimony would provide a
"corroborative 'fresh-complaint' witness" and undermine his
attempt to make some mileage from the victim's delay in reporting
the rape. The district court found that Mr. DePalma's failure to
call Dos Santos could not be the result of a sound strategic
choice because he never assembled the information necessary to
make such a choice. Dist. Ct. Op. at 32. Accordingly, the
district court concluded that Mr. DePalma's failure to call her
could not have been the product of a reasoned strategic decision.
     The Appellate Division also found that Berryman's counsel
made reasonable efforts to locate Bludson and given Campos'
"unshakable" identifications of the defendants, "evidence of
Bludson's height would not be that helpful to the defense."
(slip op. at 22). Given the degree to which Ms. Campos
equivocated and recanted portions of her description at Mr.
Bludson's trial, this record does not support a conclusion that
her testimony was "unshakable." Indeed, Mr. Bludson's attorney
was able to shake it sufficiently to raise a reasonable doubt as
to the guilt of his client. Moreover, Mr. DePalma had ample
information to suggest that Bludson was an important defense
witness. The district court realized that Bludson was an
important witness if for no other reason than the discrepancies
in the physical descriptions given by Campos at the two Bludson
trials. "By producing Bludson in court in connection with the
previous testimony, defense counsel would have called into
question the entire identification made by the witness and would
have supported the 'wrong man' theory-of-the-case." Dist. Ct. Op.
at 32. However, despite Bludson's obvious importance to the
case, Mr. DePalma did nothing more to locate Bludson than
contacting the attorney who had represented Bludson at his
criminal trial eight months earlier to see if he knew where
Bludson was. The district court characterized the failure to
call Bludson as a failure to adequately prepare for trial, and
not as a strategic decision. 

See Lewis v.
Mazurkiewicz, 

, 113 (3d. Cir. 1990). However, these
two concepts are interwoven.
     The right to counsel does not require that a criminal
defense attorney leave no stone unturned and no witness
unpursued. The district court quite correctly noted, however,
that it does require a reasoned judgment as to the amount of
investigation the particular circumstances of a given case
require. An attorney need not fully investigate every potential
avenue if he or she has reasonable grounds for not doing so. 

          [S]trategic choices made after thorough
          investigation of law and facts relevant to
          plausible options are virtually
          unchallengeable; and strategic choices made
          after less than complete investigation are
          reasonable precisely to the extent that
          reasonable professional judgments support the
          limitations in investigation.

                     In other words, counsel has a duty to make
                    reasonable investigations or to make a
                    reasonable decision that makes particular
                    investigations unnecessary. In any
                    ineffectiveness case, a particular decision
                    not to investigate must be directly assessed
                    for reasonableness in all the circumstances,
                    applying a heavy measure of deference to
                    counsel's judgments.

. Here, Bludson's significance to
Berryman's defense required more than the minimal effort Mr.
DePalma put forth to produce Bludson at Berryman's trial.
     Bludson's mere presence at trial could have cast doubt upon
Campos' identification. Campos testified that Bludson was the
second man into the car and that he was the same height as Bunch,
the first man into the car. However, Bunch, who is 6' 4", could
not easily be confused with Bludson, who is 5' 5". Bludson's
very presence in court at the Bunch/Berryman trials could have
raised serious doubts about the victim's ability to identify her
assailants. Indeed, had the jury seen Bludson, and learned of the
inconsistencies in Campos' identifications and that she may have
had a couple of beers before the incident, it is impossible to
conclude with any degree of comfort that the verdict would have
been the same. Given the dramatic effect Bludson's mere presence
could have had on the outcome of Berryman's trial, counsel was
obligated to do more to find him.
     Thus, whether the failure to call Bludson is viewed as
failure to adequately prepare, or as an unreasonable choice of
how to conduct the defense, it is clear that it fell below the
standards required for reasonable representation of one's client.
     D. Prejudice.
     Even though we agree that trial counsel's woeful performance
was not based upon any sound trial strategy, petitioner can not
prevail under Strickland unless he was prejudiced by counsel's
derelictions. In meeting the prejudice prong of an
ineffectiveness claim
          [t]he defendant must show that there is a
          reasonable probability that, but for
          counsel's unprofessional errors, the result
          of the proceeding would have been different.
          A reasonable probability is a probability
          sufficient to undermine confidence in the
          outcome.

Strickland, at 694. In other words, we must determine if "there
is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt."

"If ever there were a case where prejudice . . . has
been established, it is the present case." Dist. Ct. Op. at 33.
"[I]t is highly probable that but for petitioner's attorney's
egregious errors, the verdict as to petitioner would have been
"not guilty." 

     Berryman's jury never learned that Campos had previously
described the height of her assailants very differently from her
testimony at the Bunch/Berryman trials. The jury was therefore
never able to properly evaluate the strength of her
identification. We note that this is not merely a matter of a
defense attorney deciding to forgo questioning an identification
witness about minor discrepancies in her description, or the fact
that her estimated height was off by a couple of inches. This
jury had a unique opportunity. The actions of the three
assailants, their role in the assault, and their identity could
be related to their heights in respect to one another regardless
of how tall each actually was. Campos' inability to consistently
describe the actions of Berryman who was nearly half a foot
taller than one defendant, and nearly half a foot shorter than
the other, was information the jury needed in order to weigh the
accuracy of Campos' identification. The prejudice to Berryman is
obvious.
     Berryman's guilt rested entirely on the accuracy of Ms.
Campos' identification. Trial counsel had weapons that he could
have used to attack that identification. He used none of them. It
should have been obvious that Campos' inconsistent identification
testimony from the Bludson trials could raise serious questions
in the minds of the jurors regarding Campos' credibility and/or
her ability to identify her assailants. Trial counsel regarded it
as "minor" and didn't bother to use it. Thus the jury never knew
of Campos' difficulty identifying her assailants. The
inconsistent description is made all the more compelling by a
discrepancy in Ms. Campos' testimony that the district court
notes.
                    In her initial statement to authorities,
                    Campos said that she had been blindfolded
                    with her stockings from the moment the two
                    men got into her car at the traffic light
                    until she was returned to her car. Her trial
                    testimony, that the first man in her car
                    immediately ordered her to remove her
                    stockings, tends to corroborate this version.
                    If this were so, she could not have
                    identified petitioner at all since, according
                    to her testimony, he had not entered the
                    picture until well after she would have been
                    blindfolded.

          Dist. Ct. Op. at 4, n. 1.
     In addition, Ms. Dos Santos' testimony could have
established that Ms. Campos had consumed some alcohol immediately
prior to the rape. That is relevant to the victim's ability to
accurately identify her assailants, yet the jury was never
informed of this.
     Counsel's failure to use any of these avenues in defense of
his client is bad enough. Worse yet, Mr. DePalma's handling of
Detective Williams and Detective Tomich informed the jury of
highly prejudicial and irrelevant information, and defeated the
trial judge's efforts to shield Mr. Berryman from the dangers of
Mr. DePalma's line of questioning regarding the unrelated bank
robbery\homicide investigation. Once Mr. DePalma opened the door
to that information, "the prosecutor plunged the stilette which
petitioner's counsel had handed him." Dist. Ct. Op. at 40.
     Counsel's derelictions are severe, and seriously undermine
the reliability of Berryman's conviction. The district court
quite correctly held that Berryman is entitled to the relief the
court granted.

                               VI.
     After the district court granted Berryman relief, after this
case was argued before this panel, and while the state's appeal
was pending, Congress enacted the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat.
1214. Section 104 of the AEDPA amends 28 U.S.C. § 2254, the
statute under which Berryman sought, and was granted, relief.
Section 104(2) of the AEDPA redesignates § 2254(d)as § 2254(e),
which then provides that a state court's determination of a
factual issue shall be presumed to be correct and further
provides that a habeas petitioner "shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence." In addition, Section 104(3) adds a new § 2254(d)
which reads:
          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) 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.

     We have previously noted the enactment of the AEDPA and have
applied § 104's amendments to a state prisoner's habeas petition,
see Dickerson v. Vaughn, 

(3d Cir. 1996); however, we
have not expressly determined if Congress intended that § 104 of
the AEDPA applies retroactively to appeals or to petitions that
were pending when the Act was passed. The Act specifically
provides that it is to apply to death penalty cases "pending on
or after the date of the enactment of the Act", i.e., April 24,
1996. § 211 of Pub. L. 104-132. However, the AEDPA is silent as
to its application to pending habeas petitions in non-capital
cases. Of the circuit courts of appeals that have had the
opportunity to consider the retroactivity issue, two courts have
determined that the AEDPA's changes to § 2254 are not to be
applied retroactively, see Boria v. Keene, 

(2d. Cir.
1996) and Edens v. Hannigan, 

, 1112 n. 1 (10th Cir.
1996), and one court has found that the AEDPA is to be applied
retroactively in non-capital cases. Lindh v. Murphy, No. 95-
3608, 

, (7th Cir. Sept. 12, 1996)(en banc).
     In any event, there does seem to be agreement that Section
104(c) of the AEDPA changes the standard of review for cases
where state prisoners challenge their convictions on the basis of
alleged constitutional violations. We have opined, in dicta,
that § 104(c) establishes a "more deferential test," Dickerson
v. 

; however, we have not determined the
extent of the deference that federal habeas courts must afford
to the legal or the factual determinations made by state courts.
     In Lindh v. Murphy, a majority of the judges on the Court of
Appeals for the Seventh Circuit held that § 104(c) of the AEDPA
"for the first time specifies the appropriate treatment of legal
determinations by state courts." 1996 WL at * 2. Specifically,
the Lindh majority held, with regard to the scope of review under
§ 104(3)(d)(1) of the AEDPA, that when the issue does not involve
the meaning of the Constitution, but rather its application to a
particular set of facts, i.e., when a mixed question of law and
fact is presented, a district court can only grant habeas relief
when the state court's decision "reflects ‘an unreasonable
application of' the law." 

13. According to the Lindhmajority,
the answer to the question of whether the state court's
determination of a mixed question of law and fact is
unreasonable, "requires federal courts to take into account the
care with which the state court considered the subject." 

14. The federal habeas court must defer to the state court's
determination of a mixed question of law and fact where that
determination is reasonable, that is, within the boundaries of
the law established by the Supreme Court. 

only when
the federal habeas court is convinced that the state court's
determination of a mixed question of law and fact constitutes a
grave error can the state court's determination be found
unreasonable and only then can the federal habeas court upset a
judgment of the state court. 

as amended
by the AEDPA, "tells federal courts: Hands off, unless the
judgment in place is based on an error grave enough to be called
‘unreasonable.'"). As the Lindh majority wrote:
          The Supreme Court of the United States sets
          the bounds of what is "reasonable"; a state
          decision within those limits must be
          respected -- not because it is right, or
          because federal courts must abandon their
          independent decisionmaking, but because the
          grave remedy of upsetting a judgment entered
          by another judicial system after full
          litigation is reserved for grave occasions.
          That is the principal change effected by §
          2254(d)(1).

General argues that the AEDPA is applicable to
this case and further argues that the changes wrought to §
2254(d) by § 104(3) of the AEDPA require that the district
court's grant of habeas relief to Berryman be reversed and his
conviction reinstated. More specifically, the Attorney General
contends that the decision in Lindh v. Murphy requires that the
district court's decision here be reversed because the state
court's determination that Berryman's counsel was not ineffective
was "a reasonable, good faith interpretation of existing
precedent." See Attorney General's letter of October 2,1996.
     However, we need not determine whether the AEDPA's changes
to the habeas statute under which Berryman was granted relief are
to be applied retroactively because we are convinced that the
record clearly and convincingly shows that his trial counsel was
ineffective even if the AEDPA establishes a more deferential
standard. Further, we are convinced that even if we apply the
standard of review for state court resolution of mixed questions
of fact and law discussed in Lindh v. Murphy, Berryman would
prevail.
     As recited in Part IV of this opinion, the district court's
opinion can be read as holding that Berryman's trial counsel had
no trial strategy at all or it can be read as agreeing with the
state court that trial counsel had a strategy but disagreeing
with the state court's determination that the strategy was
reasonable. As we understand the changes made to § 2254 by §
104(3) of the AEDPA, § 104(3)(d)(1) of the AEDPA would apply if
the district court's opinion is read as holding that trial
counsel's strategy was not reasonable and § 104(3)(d)(2) would
apply if the district court's opinion is read as holding that
trial counsel had no strategy at all.
     In regard to § 104(3)(d)(1), the Attorney General submits
that Lindh v. Murphy requires that the federal habeas court must
accept the state trial court's determination that trial counsel's
strategy was reasonable because that determination was a
reasonable, good faith interpretation of existing Supreme Court
precedent. However, and assuming arguendo that Lindh correctly
interpreted this section of the AEDPA, we disagree with the
Attorney General's contention that the state court's
determination was reasonable. We have already discussed why
trial counsel's failure to use Campos' inconsistent
identification testimony was wholly unreasonable, why his opening
the door to the homicide and bank robbery investigation was
foolhardy, irrelevant and damaging, and why his failure to
investigate potential defense witnesses could not be considered
the product of a reasoned strategic decision. Based on that
discussion, we are convinced that the state court's determination
that trial counsel had a reasonable trial strategy is an "error
grave enough to be called ‘unreasonable.'" Lindh, at * 14. Mr.
DePalma's performance was severely deficient and his errors were
"so serious that counsel was not functioning as the ‘counsel'
guaranteed by the Sixth Amendment." Strickland, at 687. As a
result of his errors Berryman was deprived of a fair trial. 

woefully inadequate and deficient performance and the
prejudice that performance caused Berryman, we cannot uphold the
state court's determination that trial counsel had a reasonable
trial strategy. That determination was clearly an unreasonable
application of Strickland to the facts of this case.
     In regard to § 104(3)(d)(2) of the AEDPA, a federal court
must afford the presumption of correctness to factual
determinations made by a state court unless the state court's
decision "was based on an unreasonable determination of the facts
in light of the evidence presented" in the state court. The
habeas statute under which Berryman filed his petition provided
that factual findings made by a state court are presumed correct
"if fairly supported by the record." Reese v. 

. The AEDPA did not dramatically change this provision of
habeas jurisprudence. After all, a state court determination of
a factual issue which was not fairly supported by the record can
hardly be said to be a reasonable determination. Nonetheless, we
will assume arguendo that the AEDPA establishes a more
deferential standard which federal habeas courts must afford to
factual determinations of state courts.
     However, even applying the most conceivably deferential
standard to the factual determination of the state court that
trial counsel had a strategy, we conclude that that determination
was unreasonable in light of the evidence presented in the state
court. Trial counsel readily admitted that he had no strategy,
but only a game plan, the parameters of which he could not
recall. He was unable to explain what his third theory may have
been. At one point in his closing he suggested that Campos
fabricated the entire rape, and moments later he told the jury
that Campos was not lying. As we noted earlier, counsel can
certainly argue in the alternative, but that is not what counsel
did as he contradicted himself in front of the jury. Counsel's
own testimony, and the record of his actions at the trial,
plainly demonstrate that the state court's factual determination
that trial counsel had a strategy was an unreasonable
determination in light of the evidence presented in the state
court proceedings.
     We therefore conclude that the resolution of this habeas
case does not differ under the habeas statute under which
Berryman originally filed his petition or under the habeas
statute as amended by § 104 of the AEDPA.

                               VII.
     In conclusion, we hold that petitioner has met both prongs
of the Strickland test and find that he was denied his Sixth
Amendment right to effective assistance of counsel. The order of
the district court granting a petition for a writ of habeas
corpus will be affirmed.