Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2008

USA v. Garvin
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1815




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"USA v. Garvin" (2008). 2008 Decisions. Paper 1381.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1381


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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 06-1815


                          UNITED STATES OF AMERICA

                                          v.

                                   KYLE GARVIN,
                                             Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                             (D.C. Crim. No. 02-cr-00682)
                 District Judge: The Honorable Michael M. Baylson


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 3, 2008


             Before: BARRY, JORDAN and HARDIMAN, Circuit Judges

                           (Opinion Filed: March 27, 2008)


                                      OPINION




BARRY, Circuit Judge

      Appellant Kyle Garvin appeals the judgment of the District Court denying his

motion to vacate his sentence under 28 U.S.C. § 2255. We will affirm.
                                              I.

       Because we write only for the parties, we set forth only those facts that are relevant

to our analysis.

       On the evening of December 11, 2000, an undercover surveillance unit from the

Philadelphia Police Department (“PPD”) witnessed Garvin selling what they believed to

be drugs outside a Philadelphia deli. At some point, Garvin entered the deli. While he

was inside, a PPD plain clothes officer, Officer Jack Gohl, entered and ordered Garvin to

lay on the ground. Garvin ran out of the deli and Officer Gohl gave pursuit. Officer Gohl

testified that during the pursuit, from a distance of “eight to ten feet,” he witnessed

Garvin throw a “black object” onto the lawn of a private residence. (JA 165-66.) Shortly

thereafter, Officer Gohl caught Garvin and tackled him to the ground, at which point

Garvin threw another “black object” on the ground. (JA 166.) After Garvin was secured,

PPD officers recovered a magnetic key case near the location where he had been tackled.

Inside the key case officers found several small plastic bags containing crack cocaine.

Upon searching the lawn where Officer Gohl saw Garvin throw the first “black object,”

officers recovered a handgun. On Garvin’s person, officers found several small plastic

bags containing marijuana and $623 in U.S. currency.

       Garvin was charged with possession of a handgun in furtherance of a drug

trafficking crime, possession with intent to distribute crack cocaine, possession with

intent to distribute marijuana, and possession of a firearm by a felon. The only evidence



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linking him to the gun and the crack cocaine was Officer Gohl’s testimony. Following

the denial of his motion to suppress and a two-day jury trial, he was convicted on all

counts. He appealed, and we affirmed his conviction.

       Garvin thereafter sought collateral relief in the District Court pursuant to 28 U.S.C.

§ 2255. He claimed, among other things, that his trial counsel was ineffective because

she failed “to present evidence that no fingerprints tied Petitioner to the firearm,” and that

the prosecution failed to disclose exculpatory fingerprint evidence to the defense. (JA 51-

52.) The District Court found that Garvin’s claims were frivolous, and denied the petition

without an evidentiary hearing. Garvin timely appealed. We appointed counsel and

issued a certificate of appealability as to the following issues:

       (1) Whether the District Court erred in deciding not to hold a hearing on
       appellant’s claims that (a) his trial counsel rendered ineffective assistance
       by failing to obtain or present evidence of whether there were fingerprints
       on the gun or key case containing the cocaine base at issue and (b) the
       prosecution should have disclosed to appellant’s counsel any such
       fingerprint evidence that it may have had; and (2) Whether appellant is
       entitled to relief on the merits of those claims.

(JA 11.)

                                              II.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 2255. We have

jurisdiction pursuant to 28 U.S.C. §§ 2253 and 1291. “We review the District Court’s

decision to deny an evidentiary hearing on a motion to vacate sentence for abuse of

discretion.” United States v. Booth, 

, 545 (3d Cir. 2005). A district court



                                              3
considering a § 2255 motion “must accept the truth of the movant’s factual allegations

unless they are clearly frivolous on the basis of the existing record,” and it “abuses its

discretion if it fails to hold an evidentiary hearing when the files and records of the case

are inconclusive as to whether the movant is entitled to relief.” 

(citations

omitted).

                                             III.

       Under the standard articulated in Strickland v. Washington, 

(1984), a

prisoner alleging ineffective assistance of counsel must show, first, that counsel’s

performance was deficient, i.e., that it fell below an objective standard of reasonableness,

and second, that the defendant was prejudiced by counsel’s deficient performance. See

Outten v. Kearney, 

, 414 (3d Cir. 2006). “A court can choose to address the

prejudice prong before the ineffectiveness prong and reject an ineffectiveness claim

solely on the ground that the defendant was not prejudiced.” Rolan v. Vaughn, 

, 678 (3d Cir. 2006). To establish prejudice, the movant 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 one that is “sufficient to undermine confidence in the outcome.” 

that his counsel was ineffective because she failed to adequately

investigate the possibility of exculpatory fingerprint evidence on the gun and the key case.

To satisfy Strickland’s prejudice prong, Garvin must show that, but for his counsel’s



                                              4
inadequate investigation, there is a reasonable probability that counsel would have found

fingerprint evidence favorable to his claim of innocence, thus undermining confidence in

his conviction. He has failed to make that showing. While fingerprint evidence may have

shown that Garvin’s fingerprints were not on either object, it also may have shown that

they were on both objects – thus substantially strengthening the government’s case.

There is no reason to believe that a favorable result was reasonably probable, especially

given the jury’s finding, beyond a reasonable doubt, that Garvin possessed both the gun

and the key case. Garvin’s suggestion that the evidence “undoubtedly” would have been

favorable to him is unsupported by the record and wholly speculative.1

       Garvin also claims that the government’s failure to disclose fingerprint evidence

violated due process. Under Brady v. Maryland, 

(1963), the prosecution

must disclose evidence to a criminal defendant where the evidence is favorable to the

defendant and material either to guilt or punishment. 

In United States v.

Perdomo, 

(3d Cir. 1991), we held that the prosecution’s duty to disclose

Brady material extends to evidence that, while not in the prosecution’s actual possession,

is reasonably available to it. 

Although it hardly bears mention, an implicit

prerequisite of any Brady claim is that favorable, material evidence actually exists.

       Here, there is no evidence that fingerprint evidence was either in existence or




   1
     Because we find that Garvin was not prejudiced by his counsel’s performance, we
need not decide whether that performance was deficient. See 

.

                                             5
obtainable. Garvin’s Brady claim presupposes that it exists, or, alternatively, that it could

have been obtained by the prosecution by subjecting the gun and the key case to analysis.

These assumptions find no support in the record, and they are inadequate to state a Brady

claim. Moreover, even assuming that fingerprint evidence were obtainable, for the

reasons stated above there is not a reasonable probability that it would have been

favorable to Garvin or material to his claim of innocence. His Brady claim fails because

he has not shown that the prosecution suppressed favorable, material evidence that it was

required to disclose.

                                             IV.

       The record conclusively establishes that Garvin was not entitled to relief, and the

District Court did not abuse its discretion by denying his § 2255 motion without a

hearing. Accordingly, we will affirm the judgment of the District Court.




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