Filed: Feb. 18, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 2-18-2004 Singletary v. Blaine Precedential or Non-Precedential: Non-Precedential Docket No. 03-2339 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Singletary v. Blaine" (2004). 2004 Decisions. Paper 1000. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1000 This decision is brought to you for free and open access by the Opinions of t
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 2-18-2004 Singletary v. Blaine Precedential or Non-Precedential: Non-Precedential Docket No. 03-2339 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Singletary v. Blaine" (2004). 2004 Decisions. Paper 1000. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1000 This decision is brought to you for free and open access by the Opinions of th..
More
Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-18-2004
Singletary v. Blaine
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2339
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Singletary v. Blaine" (2004). 2004 Decisions. Paper 1000.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1000
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2339
CHRISTOPHER SINGLETARY,
Appellant
v.
CONNOR BLAINE; THE DISTRICT ATTORNEY
OF THE COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
On Appeal from the United States District Court for
the Eastern District of Pennsylvania
District Court Judge: The Honorable Ronald L. Buckwalter
(D.C. Civ. No. 00-4758)
Submitted Under Third Circuit L.A.R. 34.1(a)
January 23, 2004
Before: ALITO and CHERTOFF, Circuit Judges, and
DEBEVOISE,* Senior District Court Judge
(Opinion Filed: February 18, 2004)
*
Honorable Dickinson R. Debevoise, Senior United States District Judge for the District
of New Jersey, sitting by designation.
OPINION OF THE COURT
DEBEVOISE, Senior District Court Judge
Appellant, Christopher Singletary, filed a petition for a writ of habeas corpus in the
District Court, alleging, among other things, that by virtue of his trial and appellate
counsels’ failure to challenge the trial court’s “mere presence” jury charge, he was
deprived of his federal constitutional right to the effective assistance of counsel. The
Magistrate Judge issued a report and recommendation in which she found that this claim
was not presented to the State courts, that the claim was not, therefore, exhausted as
required by 28 U.S.C. § 2254(b)(1)(A), that the claim was procedurally defaulted under
State law, and that petitioner had failed to establish cause and prejudice to excuse his
default.
The Magistrate Judge recommended that the petition be denied but that a
certificate of appealability be granted with respect to the petitioner’s claim that appellate
counsel was ineffective for failing to argue that all prior counsel were ineffective for
failing to argue that the trial court erred in violation of due process when it gave its jury
instruction on mere presence at the scene of the crime. The District Court approved and
adopted the report and recommendation, denied the petition and granted the certificate of
appealability.
Singletary appealed, asserting that the District Court erred in concluding that he
2
had failed to exhaust his claim of ineffective assistance of counsel and requesting that we
remand the matter to the District Court so that the merits of his claim can be addressed.
We have reviewed the record and conclude that it is unnecessary to determine whether
Singletary exhausted his State remedies. The petition lacks merit and may be denied on
the merits pursuant to 28 U.S.C. § 2254(b)(2). The judgment of the District Court will be
affirmed.
Background
On June 27, 1993 the Philadelphia police arrested Singletary and four other
persons who were allegedly engaged in the armed robbery of a home. After indictment
and trial in the Court of Common Pleas of Philadelphia a jury found Singletary and his
co-defendants guilty of three counts of robbery, burglary, criminal conspiracy and
carrying firearms. Singletary was sentenced to an accumulated sentence of 47½ to 95
years imprisonment. The trial court denied post-sentence motions. On direct appeal the
Superior Court affirmed, and Singletary did not file a petition for allowance of appeal to
the Supreme Court of Pennsylvania.
On September 13, 1996 Singletary filed a pro se post-conviction relief petition in
the Court of Common Pleas under Pennsylvania’s Post Conviction Relief Act, 42 Pa.
C.S.A. §§ 9541-9546. The court appointed counsel who filed an amended petition. The
amended petition alleged four instances of ineffective assistance of appellate counsel,
each containing subparts. Pertinent to the present appeal is the contention that counsels’
3
failure to challenge the jury charge on mere presence constituted ineffective assistance of
counsel. Singletary urged that the following instruction, viewed separately or in
conjunction with the rest of the jury charge, unavoidably led the jury to conclude wrongly
that all defendants must be merely present in order for one defendant to rely on that
defense:
If you believe that the defendants were merely present, you are instructed
that mere presence at the scene of a crime is insufficient to support a
conviction. Evidence indicating participation in a crime is required.
Therefore, if you are satisfied beyond a reasonable doubt that the defendant
participated in the crime, you should find defendants guilty; otherwise, if
you find the defendants were merely present at the time the crime was
committed, you must find defendants not guilty of this crime. (Appellant’s
counsel’s emphasis).
(R. 55).
The Court of Common Pleas dismissed Singletary’s post-conviction relief petition.
Singletary appealed to the Superior Court. The Superior Court rejected Singletary’s
ineffective assistance of counsel claim based upon the mere presence charge. It noted the
three-part standard that Pennsylvania courts apply to evaluate such a claim, citing
Commonwealth v. Ellis, 541 Pa. 285, 293,
662 A.2d 1043, 1047 (1995). The Court
analyzed the mere presence charge in the context of the jury charge as a whole and found:
A review of the above instructions indicates that the trial court fully
explained the theory of “mere presence” and the concept of accomplice
liability, and informed the jury that if any of the defendants were “merely
present,” they were not guilty of the crimes charged. The instructions, read
in their entirety, clearly, adequately, and accurately presented the law to the
jury, and were sufficient to guide the jury in its deliberations. Prosdocimo,
supra. We find no merit in Appellant’s claim that the court’s instructions
4
regarding “mere presence” were erroneous, and, accordingly, find no merit
in his claim of ineffective assistance of counsel predicated on that claim.
(R. 49a).
The Superior Court affirmed the decision of the Court of Common Pleas. The
Pennsylvania Supreme Court denied Singletary’s request for discretionary review.
Singletary filed a pro se petition for a writ of habeas corpus in the District Court,
raising five claims of appellate counsel ineffectiveness. Subsequently his retained
counsel filed a memorandum of law arguing only the contention that appellate counsel
was ineffective for failing to argue that all prior counsel were ineffective for failing to
argue that the trial court erred when it gave its jury instruction on mere presence at the
scene of the crime. Retained counsel contended that the instruction violated both State
law and the Due Process Clause of the United States Constitution.
The District Court referred the petition to a Magistrate Judge for a report and
recommendation. The Magistrate Judge concluded that Singletary’s due process
challenge to the trial court’s mere presence instruction and the related ineffective
assistance of counsel claim were not presented to the State courts and were unexhausted.
Further, the M agistrate Judge held that these unexhausted claims were procedurally
defaulted, and that Singletary had not alleged cause and prejudice to excuse the default.
Therefore, the Magistrate Judge concluded that “the court cannot review on its merits the
claim that his prior counsel were ineffective for failing to argue that the jury instruction at
issue violated due process.” (R.68a).
5
The Magistrate Judge concluded that reasonable jurists could debate whether
Singletary presented a due process argument in the State courts and that reasonable jurists
could also debate whether the mere presence instruction violated due process.
Consequently she recommended that a certificate of appealability be granted.
The District Court approved and adopted the report and recommendation of the
Magistrate Judge, denied Singletary’s petition and granted a certificate of appealability
“only with respect to the Petitioner’s claim that appellate counsel was ineffective for
failing to argue that all prior counsel were ineffective for failing to argue that the trial
court erred in violation of due process when it gave its jury instruction on mere presence
at the scene of the crime.”
Jurisdiction
The District Court had jurisdiction of Singletary’s petition under 28 U.S.C. §
2254(a). The District Court having granted a certificate of appealability, we have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
Discussion
Without deciding whether petitioner raised his federal due process claim of
ineffective assistance of counsel in the State courts, we address the merits of that claim.
Petitioner asserts that the mere presence instruction violated due process because it
allowed the jury to convict him even if he was merely present at the scene of the crime so
long as at least one other defendant was not merely present. He further asserts that his
6
counsel in the State criminal proceedings were ineffective for failing to advance this issue
in those proceedings.
We have reviewed the State trial court’s jury charges in their entirety. When
reviewed thus, we conclude that no reasonable juror could adopt petitioner’s construction
of the mere presence charge. During its charge the trial court often referred to
“defendants,” when it might have been preferable to have referred to “a defendant” or
“the defendant.” 1 However, when viewed in the entire context of the charge, it is
abundantly clear that the jurors were required to examine separately each defendant’s
culpability or non-culpability.2 We agree with the Pennsylvania Superior Court that “the
1
E.g., “One, in order to find defendants [a defendant] guilty of conspiracy to commit
robbery, you must be satisfied initially that the following two elements of a conspiracy have been
proven beyond a reasonable doubt:
“First, that the defendants [the defendant] agreed with one or more persons that they or
one or more of them would engage in conduct which constitutes the crime of robbery . . .
“Second, that the defendants [the defendant] did so with the intent of promoting or
facilitating the crime of robbery” (R. 13a).
2
The presumption of innocence charge read: “. . . the defendant is presumed innocent
throughout the trial and unless and until you conclude, based on careful and impartial
consideration of the evidence, that the Commonwealth has proven him guilty beyond a
reasonable doubt.” (R. 17a).
The burden of proof charge read: “. . . it is the Commonwealth that always has the burden
of proving each and every element of the crime charged and that the defendant is guilty of the
crime beyond a reasonable doubt.” (R. 17a).
A supplemental charge concerning guilt as an accomplice read: “A defendant is guilty of
a crime if he is an accomplice of another person who commits that crime. A defendant does not
become an accomplice merely by being present at the scene or knowing about the crime. He is
7
trial court fully explained the theory of ‘mere presence’ and the concept of accomplice
liability, and informed the jury that if any of the defendants were ‘merely present,’ they
were not guilty of the crimes charged.” (R. 49a).
There is a two part test for claims of ineffectiveness of counsel. First a petitioner
must show that “counsel’s representation fell below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, the
petitioner must show that counsel’s deficient performance “prejudiced the defense” by,
“depriv[ing] the [petitioner] of a fair trial, a trial whose result is reliable.”
Id. at 687.
In the present case we have found that the jury charge did not permit the jury to
find petitioner guilty if he were merely present at the scene of the crime. Thus the
premise supporting petitioner’s Sixth Amendment ineffective assistance of counsel claim
fails. It would have been futile for trial or appellate counsel to have advanced this claim.
An attorney cannot be ineffective for failing to raise a claim that lacks merit. Moore v.
Deputy Commissioner of SCI - Huntingdon, 946 F.2d 236, 245 (3d Cir. 1991).
Because petitioner’s substantive constitutional claim lacks merit, his request for
habeas relief may be denied even if there has been a failure to exhaust his State remedies.
28 U.S.C. § 2254(b)(2); Duncan v. Morton, 256 F.3d 189, 203 n.6 (3d Cir. 2001).
an accomplice if, with the intent of promoting or facilitating the commission of the crime, he
solicits, commands, encourages, requests the other person to commit it, or he aids, agrees to aid
or even attempts to aid the other person in the planning or committing it . . ..” (R. 27a).
8
Conclusion
Without deciding whether petitioner exhausted his state remedies we will affirm
the judgment of the District Court because petitioner has not established that his Sixth
Amendment right to effective assistance of counsel was violated.
9
