NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 15-3193
                                     ______________

                                       JOSE RUIZ,
                                          Appellant

                                             v.

                       SUPERINTENDENT HUNTINGDON SCI;
                      ATTORNEY GENERAL PENNSYLVANIA;
                       DISTRICT ATTORNEY PHILADELPHIA
                                 ______________

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (D.C. No. 2-11-cv-01993)
                       District Judge: Honorable Norma L. Shapiro
                                     ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    October 6, 2016
                                   ______________

               Before: SHWARTZ, COWEN, and ROTH, Circuit Judges.

                               (Filed: November 29, 2016)
                                     ______________

                                        OPINION*
                                     ______________

SHWARTZ, Circuit Judge.



       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
       Jose Ruiz was convicted of first-degree murder and sentenced to life imprisonment

following a bench trial in the Philadelphia Court of Common Pleas (“Trial Court”). He

appeals the denial of his petition for a writ of habeas corpus, pursuant to 28 U.S.C.

§ 2254. For the reasons set forth herein, we will affirm.

                                               I

       On a July evening in 1997, Ruiz and Hiram Cuba were engaged in a heated

discussion on a Philadelphia street. Several individuals were present, including Ruiz’s

sister and two eyewitnesses. These two witnesses testified that Ruiz fatally shot Cuba.

During the trial, Ruiz challenged their identifications by highlighting inconsistencies in

their testimony and by presenting an eyewitness who testified that Ruiz was not the

person who shot Cuba. The Trial Court found Ruiz guilty of first-degree murder,

carrying a firearm on a public street, and possession of an instrument of crime, and

sentenced him to life imprisonment. See 42 Pa. Stat. and Cons. Stat. Ann. §§ 9711(b),

(c). The conviction was affirmed on direct appeal. Commonwealth v. Ruiz, 

(Pa. 2005) (table); Commonwealth v. Ruiz, 

(Pa. Super. Ct. 2004)

(table).

       Ruiz then filed a pro se petition for post-conviction relief pursuant to

Pennsylvania’s Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541. Ruiz

raised five grounds for relief, including that his trial counsel rendered ineffective

assistance by failing to adequately advise him of his right to testify and by failing to call

him to testify at the trial. Counsel was appointed and filed an amended petition that

omitted the ground for relief related to Ruiz’s right to testify but claimed three grounds

                                              2
for relief, including that trial counsel was ineffective for failing to call known alibi

witnesses.

       The PCRA Court held a hearing at which Ruiz testified. Ruiz said that, at the time

of the killing, he was eating dinner at his mother’s house and that he had told his trial

counsel that his mother and girlfriend could have testified to that alibi.1 The PCRA Court

found that the “imprecise testimony [regarding the alibi] would not have been sufficient

to raise reasonable doubt in the Commonwealth’s case or change the outcome of the

verdict.” Supp. App. 127. As a result, the PCRA Court denied the petition for collateral

relief. The Pennsylvania Superior Court affirmed. Commonwealth v. Ruiz, 

(Pa. Super. Ct. 2010) (table), and the Pennsylvania Supreme Court denied Ruiz’s petition

for an allowance of appeal, Commonwealth v. Ruiz, 

(Pa. 2010) (table).

       Ruiz then filed the instant petition for a writ of habeas corpus alleging six grounds

for relief, including those related to his counsel’s failure to protect his right to testify. At

an evidentiary hearing, Ruiz provided pro se submissions showing that he had presented

the right to testify claim to the PCRA Court but his appointed PCRA counsel did not

pursue it. The District Court concluded that the claim was procedurally defaulted and

that Ruiz did not show cause to excuse his default under Martinez v. Ryan, 

(2012). The District Court declined to credit Ruiz’s testimony that both he and his

mother were having dinner together on the night of the murder, explaining that because

the factfinder credited the eyewitness accounts placing Ruiz at the scene of the crime, and


       1
         The trial judge also presided over the PCRA proceedings. We use different
labels only to distinguish the proceedings themselves.
                                               3
Ruiz’s testimony would have directly contradicted those accounts, the factfinder would

have rejected it. The District Court therefore denied the petition, concluding that Ruiz’s

testimony would not have established his possible innocence and his counsel’s failures

concerning his testimony did not violate his constitutional rights.

       We granted a certificate of appealability with respect to whether Ruiz’s “trial

attorney was ineffective for failing to advise him of his right to testify and whether [Ruiz]

has demonstrated cause to overcome the procedural default of this claim.” App. 52.

                                             II2

                                             A

       A petition for federal habeas corpus relief must be dismissed if the petitioner has

not exhausted all state remedies for his federal claims. Coleman v. Thompson, 

, 731 (1991). To satisfy the exhaustion requirement, a petitioner must demonstrate

that the claim was fairly presented at each available level of the state courts. Lines v.

Larkins, 

, 159-161 (3d Cir. 2000). This procedural bar may be lifted if the

petitioner shows cause for his failure to meet the exhaustion requirement. Ineffective

assistance of counsel at initial-review state collateral proceedings may constitute such

cause. 

.

       We need not decide whether Ruiz has shown cause under Martinez to lift the

procedural bar here because, as explained below, his ineffectiveness claim lacks merit.

See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied

       2
         The District Court had jurisdiction under 28 U.S.C. § 2254(a). We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).

                                              4
on the merits, notwithstanding the failure of the applicant to exhaust the remedies

available in the courts of the State.”); Roman v. DiGuglielmo, 

, 209 (3d Cir.

2012) (“Because we will deny Roman's claims on the merits, we need not address the

issue of exhaustion in this case.”).

                                             B

       Before turning to the merits of Ruiz’s ineffectiveness claim, we must first consider

our standard of review under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). Our standard of review is dictated by whether the Petitioner’s “claim has

already been ‘adjudicated on the merits in State court.’” Johnson v. Williams, 

, 1091 (2013) (quoting 28 U.S.C. § 2254(d)). If the state court has adjudicated the

claim on the merits, the petition may only be granted if “the state court decision was

contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States, or was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” Breakiron v. Horn, 

, 131 (3d Cir. 2011) (quotation

marks and citations omitted). Where a state court has not adjudicated a claim on the

merits, we review pure legal questions and mixed questions of law and fact de novo.

Simmons v. Beard, 

, 231 (3d Cir. 2009). As to facts, we presume that the

state courts’ factual findings are correct under § 2254(e)(1), “unless rebutted by clear and




                                             5
convincing evidence.”3 

; see also Palmer v. Hendricks, 

, 392 (3d Cir. 2010).

        Ruiz’s amended PCRA petition did not allege that his trial counsel was ineffective

for failing to adequately advise him of his right to testify, and consequently no state court

adjudicated that issue.4 As such, the § 2254(d) deference standard does not apply, but we

presume that the state courts’ factual findings are correct and review legal questions de

novo.




        3
            Section 2254(e)(1) provides that:

        In a proceeding instituted by an application for a writ of habeas corpus by a
        person in custody pursuant to the judgment of a State court, a determination
        of a factual issue made by a State court shall be presumed to be correct. The
        applicant shall have the burden of rebutting the presumption of correctness
        by clear and convincing evidence.

28 U.S.C. § 2254(e)(1).
        4
         Contrary to the Commonwealth’s argument, the PCRA Court did not decide
whether Ruiz’s trial counsel rendered ineffective assistance by failing to adequately
advise him of his right to testify as part of its ruling on the claim that counsel was
ineffective for failing to call known alibi witnesses. It is generally in the province of
counsel to decide which witnesses to call, but it is a defendant’s decision alone whether
or not to take the stand in his own defense. United States v. Pennycooke, 

, 10
(3d Cir. 1995). As such, whereas trial counsel might have elected not to call other alibi
witnesses due to reasonable trial strategy, we can think of no strategic justification for
failing to advise a client of his right to testify. Moreover, though the alleged prejudicial
effect of both claims of ineffectiveness relies on similar factual grounds, the analysis of
such effect will differ for each claim since a defendant can be a uniquely persuasive
witness. See Rock v. Arkansas, 

, 52 (1987). The two claims are thus distinct,
and the state court’s adjudication of the alibi issue did not resolve the right to testify
issue.
                                                6
       In addition, since the District Court held an evidentiary hearing, we “review any

findings of fact drawn from the evidentiary hearing for clear error,” and apply plenary

review to its legal conclusions. Morris v. Beard, 

, 193 (3d Cir. 2011).

                                               C

       Mindful of the applicable standard of review, we now turn to whether Ruiz’s trial

counsel was constitutionally ineffective for failing to advise him of his right to testify at

trial. To succeed on his claim, Ruiz must show (1) “that [his] counsel’s performance was

deficient;” and (2) “that the deficient performance prejudiced the defense.” Strickland v.

Washington, 

, 687 (1984). We will assume that trial counsel failed to

adequately inform Ruiz of his right to testify and that such a failing rendered his

assistance deficient. Therefore, we will examine only whether that deficiency prejudiced

Ruiz. See 

(“[A] court need not determine whether counsel’s performance was

deficient before examining the prejudice suffered by the defendant as a result of the

alleged deficiencies.”).

       To establish prejudice, Ruiz must demonstrate “that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

. To this end, Ruiz “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.” 

In determining whether counsel’s

failure to present potentially exculpatory evidence was prejudicial, a reviewing court

cannot merely determine whether there was sufficient evidence for a conviction at the

                                                7
time of trial, but instead must weigh the evidence as a whole and consider the potential

impact of the previously unpresented evidence. See Saranchak v. Secretary, Pa. Dep’t of

Corr., 

, 599-600 (3d Cir. 2015). This inquiry “focuses on the effect the

same evidence would have had on an unspecified, objective factfinder rather than a

particular decisionmaker in the case.” 

(internal quotation marks and citations

omitted).

       Ruiz asserts that had he been advised of his right to do so, he would have

presented an alibi defense at his trial, testifying that he spent the day with his girlfriend

and their son and ate dinner at his mother’s house with his son, girlfriend, and mother.

While we are mindful that “the most important witness for the defense in many criminal

cases is the defendant himself,” Rock v. Arkansas, 

, 52 (1987), and that “‘it is

only the most extraordinary of trials in which a denial of the defendant’s right to testify

can be said to be harmless beyond a reasonable doubt,’” 

(quoting

Martinez v. Ylst, 

, 1157 (9th Cir. 1991)), prejudice is not presumed where

counsel fails to advise a client of his right to testify. Rather, the prejudicial effect of this

failure depends on the significance of the facts to which the defendant might have

testified, evaluated in the context of the remainder of the evidence produced at trial. 

state court has ruled on the ineffectiveness claim as it relates to Ruiz’s

right to testify, the PCRA Court declined to credit Ruiz’s testimony regarding the exact

alibi he would have provided. Ruiz told the PCRA Court that his mother would have

testified that he was having dinner with her on the night of the murder. The PCRA Court

noted that Ruiz could not offer any reason why he or his mother would have had a

                                                8
particular memory of that night, given that he was arrested five weeks later and he

testified simply that he remembered having dinner at her house since “[w]ell, that is what

we usually do. I usually go to my Mother’s house and we have dinner once in a while.”

Supp. App. 127. The PCRA Court found that this testimony would have been too

imprecise to raise reasonable doubt at his trial. Thus, we have a factual finding

concerning the exact subject about which Ruiz says he would have testified. Although he

offered his testimony to support a different ground for relief than the one he now pursues,

the PCRA Court’s credibility assessment of Ruiz’s testimony about his alibi is still a fact

that we must presume to be correct under § 2254(e)(1). See Miller-El v. Cockrell, 

, 340 (2003) (a state court finding of witness credibility is a factual finding

presumed to be correct under § 2254(e)(1)).

       Ruiz has not rebutted this fact finding by clear and convincing evidence. The

PCRA Court’s finding that the testimony was imprecise was supported by the fact that

Ruiz could not explain why he or his mother would have had a particular memory of their

supposed dinner on the night in question. Moreover, Ruiz’s testimony offered conflicting

timelines. He first testified that he arrived at his mother’s house at 6:30 p.m. On cross-

examination, the Commonwealth confronted Ruiz with the notice of alibi he produced in

anticipation of trial stating that he arrived at dusk, which Ruiz admitted would have been

approximately 8:00 p.m. at that time of year (Cuba was shot at 7:30 p.m.). The notice of

alibi also stated that Ruiz’s sister was at the family dinner but Ruiz did not testify that she

was present. This change is particularly noteworthy since eyewitnesses placed his sister

at the murder scene and thus Ruiz could no longer assert that she was also at dinner.

                                              9
Finally, the Commonwealth showed that his mother lived in close proximity to the crime

scene, indicating that he could have both committed the murder and dined with his

mother.

       The District Court offered an additional reason for discrediting Ruiz’s testimony.

At the federal evidentiary hearing, Ruiz coincidentally offered precisely the sort of detail

that the PCRA Court had noted was missing from his original testimony without

explaining why his testimony had evolved over the course of the two hearings. More

specifically, Ruiz provided an additional detail as to why he had a particular memory of

the date in question, claiming that it was his “fifth-year anniversary with [his] son’s

mother.” App. 381. Given the conflict between this federal testimony and his PCRA

testimony, where he only explained that he knew he was at his mother’s house that night

because it was his habit to eat dinner there, we cannot conclude that this new testimony

undermines the state court’s factual findings concerning the credibility of his alibi

testimony. Indeed, the federal testimony bolsters the state court’s finding that the alibi

was not worthy of credence. Furthermore, Ruiz’s testimony at the federal hearing

provided no basis to ignore his PCRA testimony. At both hearings, his testimony was

offered solely to support the same supposed alibi and his testimony at the federal hearing

did not rebut the PCRA Court’s finding that his state court testimony was imprecise and

undermined by internal inconsistencies.

       In sum, we defer to the state court’s finding that Ruiz’s proposed testimony would

not have changed an objective factfinder’s view of all of the evidence because it was not

credible, and hence there is no reasonable probability that the outcome would have been

                                             10
different had Ruiz testified at his trial. Thus, the District Court correctly denied his

petition.

                                              III

       For the foregoing reasons, we will affirm the District Court’s judgment denying

Ruiz’s petition for habeas corpus relief.




                                              11