NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT


                             No. 10-1063


                         WILLIE GOODING,
                                  Appellant

                                   v.

JAMES WYNDER, Superintendent, State Correctional Institution at Dallas;
*SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
      THOMAS CORBETT, Attorney General of Pennsylvania;
  DEPUTY PROSECUTOR YORK COUNTY DISTRICT ATTORNEY

               *(Pursuant to Rule 43(c), Fed. R. App. P.)



            On Appeal from the United States District Court
               For the Middle District of Pennsylvania
                      (D.C. No. 1-07-cv-01243)
               District Judge: Honorable Yvette Kane


              Submitted Under Third Circuit LAR 34.1(a)
                         on October 27, 2011


        Before: FISHER, VANASKIE and ROTH, Circuit Judges


                   (Opinion filed: January 25, 2012)




                             OPINION
ROTH, Circuit Judge:

       Willie Gooding appeals the District Court’s denial of his petition for a writ of

habeas corpus in relation to convictions for kidnapping and third degree murder. We

limit our review to the two issues on which the District Court granted certificates of

appealability, and for the reasons explained below, we will affirm the denial of

Gooding’s petition.

I. BACKGROUND

       On November 7, 1996, Terrence Murphy, accompanied by two other men,

attempted to rob a house in York, Pennsylvania, where Gooding and others engaged in

illegal drug trafficking. While fleeing the scene, Murphy fired shots at Charles Malloy,

an associate of Gooding’s. Though uncertain of the shooter’s identity, Gooding, Malloy

and two other men - Antoine Brown and Corey Riera – speculated that Murphy and

Arthur Irick, both known for robbing drug dealers, might have been involved and set out

in search of them to retaliate. They soon found Irick, and, thinking that he could be of

use in locating Murphy, picked him up in one of their cars and continued their search.

Irick directed them to an apartment building where he thought Murphy could be found,

but he was not there. At that point, the men drove to an isolated lot and forced Irick out

of the car. Malloy then shot him four times, killing him.

       Based upon evidence of the above presented at trial in Pennsylvania state court,

Gooding was convicted, as an accomplice, for the kidnapping and third degree murder of

Irick. He was sentenced to the maximum 20-40 years imprisonment for third degree

murder and the maximum 10-20 years imprisonment for kidnapping. He was

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unsuccessful in appealing his conviction in Pennsylvania state court and filed a petition

for a writ of habeas corpus in the District Court. That court denied the petition but

granted certificates of appealability on two issues: (1) whether the prosecutor’s conduct

so infected the trial with unfairness as to deny Gooding due process and (2) whether

Gooding was deprived of his Sixth Amendment right to counsel by his attorney’s failure

to request a jury instruction clarifying the limited purpose for which “other bad acts”

evidence was admitted. Gooding now raises these issues in his appeal to this Court.

II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction over Gooding’s petition pursuant to 28 U.S.C.

§ 2241 and our jurisdiction to hear his appeal is based on 28 U.S.C. § 1291 and § 2253.

Our review is plenary, so we scrutinize the state court determinations under the same

standards as did the District Court. Thomas v. Horn, 

, 113 (3d Cir. 2009).

Under those standards, a writ of habeas corpus can be granted by a federal court on a

claim that was “adjudicated on the merits” in state court only if the adjudication (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) “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A claim is

adjudicated “on the merits” when it is finally resolved based on its substance rather than

on a procedural or other ground. 

. When a claim before a

federal habeas court has not been previously adjudicated “on the merits,” however, that

court conducts de novo review over pure questions of law and mixed questions of law

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and fact. Lewis v. Horn, 

, 100 (3d Cir. 2009). Regardless of how a claim was

adjudicated in state court, that court’s relevant factual determinations are presumed

correct, rebuttable only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III. DISCUSSION

       A. Due Process

       Gooding first argues that his due process rights were violated by repeated

comments by the prosecutor that rendered his criminal trial fundamentally unfair. He

identifies 23 separate instances of such statements, made throughout the various stages of

the trial, which generally portray drug dealers in a negative light, emphasize the fact that

Gooding and his associates are drug dealers from New York City, and ascribe

responsibility for many of the problems facing York to the illegal activities of these

outsiders. Gooding argues that these statements deprived him of a fair trial because their

intent and effect were to cause the jury to conclude that he was a dangerous person and to

convict him in order to address the problems in York.

       Gooding is correct that prosecutorial misconduct can “so infect[] [a] trial with

unfairness as to make the resulting conviction a denial of due process.” Donnelly v.

DeChristoforo, 

, 643 (1974). This occurs, though, only if the misconduct

constitutes a “failure to observe that fundamental fairness essential to the very concept of

justice.” 

Under our interpretation of Supreme Court precedent, determining

whether this type of due process violation has occurred requires us to “examine the

prosecutor’s offensive actions in context and in light of the entire trial, assessing the

severity of the conduct, the effect of [any] curative instructions, and the quantum of

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evidence against the defendant.” Moore v. Morton, 

, 107 (3d Cir. 2001).

       We agree with the District Court that the prosecutor’s statements connecting

Gooding to drug trafficking were not improper. Evidence that Gooding and his

associates were involved in such activity served to establish a connection between the

four of them and provided context and a motive for Irick’s kidnapping and murder. The

prosecutor’s references to Gooding’s drug dealing were therefore within bounds.

       We also agree that the prosecutor’s statements about crime in York in general, its

association with outsiders from New York City, and the resulting implication that

Gooding and his associates were responsible not merely for Irick’s murder but also for

broader social problems in York were objectionable. However, in the context of the

entire trial, there were only a few isolated statements to this effect and they were made

only tangentially to proper statements explaining the connection between Irick’s murder

and drug trafficking. We also note that the trial judge instructed the jury that statements

of counsel were not evidence, thus minimizing any potential prejudice from these

statements. And perhaps most importantly, there was significant evidence of Gooding’s

guilt. Two of the other men involved in Irick’s murder, Brown and Riera, provided

detailed testimony about Gooding’s role, thereby implicating him as an accomplice. This

testimony was consistent with the prosecution’s theory of the case and was corroborated

by the testimony of other witnesses, such as Terrence Murphy. The testimony was also

supported by physical evidence, including a murder weapon found with Riera’s

assistance that matched casings found at the crime scene. Finally, there was evidence of

a strong motive for the crimes. In light of all this evidence, the fact that any

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objectionable statements were not prominent in the context of the trial, and the general

jury instruction that such statements were not evidence, we find that the prosecutor’s

comments did not infect the trial with unfairness and thus did not render Gooding’s

conviction a violation of his due process rights.

       B. Ineffective Assistance of Counsel

       As we have discussed, the prosecution’s evidence of Gooding’s engagement in

drug trafficking was relevant because it explained the relation between the four

assailants, their connection to Irick, and their motive for kidnapping and murdering him.

Gooding argues, however, that such evidence could have led the jury to make improper

inferences of his bad character and propensity to engage in crime, and that his attorney

should have requested that the court give an instruction to the jury to prevent it from

reaching these conclusions. He claims that his attorney was ineffective for failing to do

so, thus depriving him of his Sixth Amendment right to counsel.

       Pursuant to Supreme Court precedent, Gooding can make out a claim of

constitutionally ineffective counsel only if he can demonstrate “(1) that counsel’s

performance was deficient, that is, it fell below an objective standard of reasonableness,

and (2) that counsel’s deficient performance prejudiced [him].” Albrecht v. Horn, 

, 127 (3d Cir. 2007) (citing Strickland v. Washington, 

, 689-92

(1984)). To establish prejudice, Gooding must prove 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.” 

. Even assuming that

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the failure to request a limiting instruction in relation to evidence of Gooding’s

engagement in drug trafficking was deficient performance by his attorney, we find that

Gooding cannot succeed on this claim because he cannot establish that he was prejudiced.

We reach this conclusion based on the strength of the evidence of Gooding’s guilt, which

we are required to consider. See Buehl v. Vaughn, 

, 172 (3d Cir. 1999). As

we have described, such evidence was significant, including incriminating testimony

provided by two of his fellow assailants, corroborating testimony by other witnesses,

physical evidence, and strong evidence of motive. Accordingly, we are confident that the

outcome of Gooding’s trial would not have been different had his attorney requested a

limiting instruction related to evidence of his drug trafficking, and we reject his claim of

ineffective assistance of counsel.

III. CONCLUSION

       For the reasons explained above, we will affirm the District Court’s order denying

Gooding’s petition for a writ of habeas corpus.




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