SMITH, Circuit Judge.
In May 2001, petitioner George Anthony Ross was convicted of third degree murder after his third trial on the same charge. Ross unsuccessfully appealed his conviction and sought relief under Pennsylvania's Post-Conviction Relief Act, 42 Pa. Cons. Stat. §§ 9541-46. Ross then sought federal habeas corpus review under 28 U.S.C. § 2254, raising Constitutional claims under the Fifth, Sixth, and Fourteenth Amendments. The District Court denied Ross's petition, and we granted a certificate of appealability. Among other issues, Ross argues that his rights under the Confrontation Clause were violated when the trial court admitted prior testimony from an unavailable government witness, even though Ross did not have the opportunity to cross-examine the witness with newly-discovered impeachment evidence. For the following reasons, we conclude that the Confrontation Clause is not the proper avenue for relief on Ross's claim. We will affirm.
This case arises out of a murder that took place a decade and a half ago. On December 31, 1996, Cheo Stevenson was shot dead while riding in a jitney in the Northside section of Pittsburgh, Pennsylvania. Ross was implicated in the shooting, and was charged with criminal homicide, aggravated assault, and carrying an unlicensed firearm in violation of the Uniform Firearm Act. On June 4, 1997, Ross
At the third trial, the Commonwealth opened its case-in-chief with testimony from Jonathan Smith, who was riding in the jitney along with Stevenson at the time of the shooting. The Commonwealth then called to the stand a series of witnesses who testified about the crime scene, and the results of various laboratory tests that were performed on objects found at the scene.
Finally, the Commonwealth called Randy Erwin to the stand. At the second trial, Erwin had testified that Ross, whom he had met at the Allegheny County Jail, confessed in jail to shooting Stevenson. At the third trial, however, Erwin refused to testify on the ground that he feared retribution if he were to testify. The Commonwealth inquired as to Erwin's willingness to testify, asking whether Erwin would testify if ordered to do so. Erwin repeated that he would refuse to testify:
Trial Tr. at 110:5-12, 112:3-6.
On cross-examination, Erwin suggested that despite his reluctance, he might testify if he was ordered to do so. The Commonwealth clarified this suggestion on re-direct:
Id. at 117:14-22. Erwin also stated that he suffered a lapse of memory and would not be able to testify even if ordered to do so. Id. at 118:16-19.
The trial judge found Erwin unavailable over defense counsel's objection. The unavailability determination having been made, the trial judge allowed Erwin's testimony from the second trial to be read into the record. At this point, defense counsel had failed to proffer any reason why Ross might not have had a full and fair opportunity to cross-examine Erwin at the second trial.
Trial Tr. at 142:17-143:1. The Commonwealth did not include in its list Erwin's prior conviction for making a false report to law enforcement. Nor did Ross's counsel introduce this omitted conviction. The Commonwealth then rested its case.
After presenting testimony from the driver of the jitney in which Stephenson had been riding at the time of the shooting, Ross's counsel requested a sidebar with the trial judge to discuss the admissibility of testimony from Thomas Thornton. Thornton, an inmate who was allegedly housed next to Randy Erwin, was Ross's only remaining witness. Thornton intended to testify that Erwin fabricated his testimony regarding Ross's confession.
After closing arguments, the trial judge delivered the jury charge and allowed the jury to deliberate. After approximately two and a half hours of deliberation, the jury indicated to the court tipstaff that it had reached a verdict. Before the verdict could be recorded, however, one juror asked to speak with the trial judge.
The trial judge held an in camera conference with the single juror, counsel for both sides, and a court reporter. Ross himself was not present at the conference. At the conference, the juror voiced concerns about retribution should she vote guilty, identifying a spectator at the trial who may have recognized her:
Trial Tr. at 266:12-268:15; see also Trial Tr. at 258:24-259:2; 262:20-21. Throughout this conference, the juror continued to voice her belief that Ross was guilty of the charged crime. See, e.g., Trial Tr. at 254:10-11 ("I feel that he is guilty on his accounts which he was wrong for doing in God's eyes."). The juror never equivocated on the issue of Ross's guilt.
The trial judge reminded the juror several times that her job was to vote to convict or not to convict, regardless of Ross's race. The trial judge also tried to allay the juror's fear of retribution by telling her that no juror in any case he had ever tried had been threatened after delivering a verdict. The trial judge then instructed the juror to return to the courtroom to record the verdict.
After the juror left the in camera conference, Ross's counsel moved for a mistrial. The trial judge denied the motion. Counsel, the court reporter, and the trial judge reconvened in the courtroom, with Ross and the twelve jurors present. The jurors, who were individually polled by the court to ensure the verdict was correctly reported, unanimously convicted Ross of third-degree murder.
Ross timely appealed his conviction. On October 23, 2003, the Superior Court of Pennsylvania affirmed the judgment. The Supreme Court of Pennsylvania denied Ross's petition for allowance of appeal.
Having exhausted his direct appeal, on March 9, 2005, Ross petitioned for relief under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons.Stat. §§ 9541-46. The PCRA Court denied Ross's petition on the merits. Ross appealed, and the Superior Court of Pennsylvania affirmed. The Supreme Court of Pennsylvania again denied Ross's petition for allowance of appeal.
On September 24, 2009, Ross timely filed for federal habeas relief under 28 U.S.C. § 2254 in the Western District of Pennsylvania. On December 2, 2009, the District Court denied Ross's petition on the merits. The District Court declined to issue a certificate of appealability under 28 U.S.C. § 2241(a).
On August 26, 2010, we granted Ross's application for a certificate of appealability as to three issues relating to Erwin's testimony
The District Court exercised jurisdiction over Ross's petition under 28 U.S.C. §§ 2241, 2254. We exercise jurisdiction under 28 U.S.C. §§ 1291, 2253. Because the District Court "relied exclusively on the state court record and did not hold an evidentiary hearing, our review is plenary." Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir.2010). "We review the decision of the state court under the same standard that the District Court was required to apply." Saranchak v. Beard, 616 F.3d 292, 301 (3d Cir.2010).
A district court's authority to review a state court's denial of post-conviction relief is limited by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Because the PCRA Court denied Ross's PCRA Petition on the merits, we may grant habeas relief only if the PCRA Court's adjudication of Ross's claims "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 ... in a decision that 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). "This is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (internal quotation marks and citations omitted).
Ross raises three Sixth Amendment claims arising out of the introduction of Erwin's testimony from the second trial, arguing that: (1) he was denied his rights under the Confrontation Clause when Erwin's prior testimony was read into the record; (2) he was denied his rights under the Confrontation Clause when the trial court excluded Thornton's testimony; and (3) he was denied his right to effective assistance of counsel when trial counsel failed to present evidence of Erwin's crimen falsi conviction for making a false report to law enforcement.
The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]" U.S. Const. amend. VI. Under the Confrontation Clause, "[A] witness's testimony against a defendant is [ ] inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination." Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314 (2009). Here, Erwin did not appear at the third trial. In order for his testimony from the second trial to have been admissible: (1) Erwin must have been "unavailable;" and (2) Ross must have "had a prior opportunity for cross-examination."
The existence of contrary evidence, however, does not render the PCRA Court's determination unreasonable in light of the evidence presented. See 28 U.S.C. § 2254(d); Lambert v. Blackwell, 387 F.3d 210, 251-52 (3d Cir.2004) (upholding a factual determination by a PCRA Court despite the existence of evidence contradicting the determination). There were ample statements in the record from which the PCRA Court could reasonably have concluded that Erwin would not testify if called to do so. Under AEDPA, it is not the place of a federal court to reweigh the evidence, when the state court's determination is supported by the record. Moreover, on redirect, Erwin explained that he had not understood Ross's questions during cross-examination, and that he would in fact refuse to testify even if ordered to do so. See Trial Tr. at 117:14-22.
Ross also argues that the PCRA Court erred as a matter of law by concluding that Erwin's refusal to testify was sufficient to render him unavailable within the meaning of the Confrontation Clause. Rather, Ross argues that the trial court had an obligation to order Erwin to testify under threat of sanctions. Only if Erwin refused to comply with the court order, Ross argues, would he be unavailable for Confrontation Clause purposes.
The Confrontation Clause does not require a witness to face the threat of sanctions in order to be rendered unavailable. A witness is unavailable for Confrontation Clause purposes when he or she refuses to testify, regardless of whether the refusal is in response to an order to testify under threat of sanctions. See, e.g., United States v. Bell, 367 F.3d 452, 466 (5th Cir.2004); United States v. Reed, 227 F.3d 763, 767 (7th Cir.2000); Jennings v. Maynard, 946 F.2d 1502, 1505 (10th Cir. 1991); Rice v. Marshall, 709 F.2d 1100, 1102 (6th Cir.1983). Ross points to no Supreme Court precedent to the contrary. The PCRA Court's conclusion thus was not an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1).
As discussed above, in order for Erwin's testimony from the second trial to have been admissible: (1) Erwin must have been "unavailable" and (2) Ross must have "had a prior opportunity for cross-examination." Melendez-Diaz, 129 S.Ct. at 2531. As to the second requirement, the Confrontation Clause requires that a defendant have had "a full and fair opportunity to probe and expose [testimonial] infirmities" of an unavailable government witness in order for that witness's prior testimony to be admissible. United States
In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court held that a defendant may be denied a full and fair opportunity to cross-examine a government witness where the defendant is precluded from showing "why [that witness] might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial." Id. at 318, 94 S.Ct. 1105. In Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985), however, the Supreme Court limited Davis and held that the Confrontation Clause was not violated where "the trial court did not limit the scope or nature of defense counsel's cross-examination in any way." Id. at 19, 106 S.Ct. 292. Fensterer clarified that the Confrontation Clause is not necessarily violated where a defendant is unable to effectively impeach a government witness. Rather, the clause may be violated where a defendant's inability to impeach is attributable to a limitation on the scope or nature of the cross-examination imposed by the trial court.
The Supreme Court bolstered this more limited reading of the Confrontation Clause in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), holding that "the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination." Id. at 52, 107 S.Ct. 989. The Supreme Court noted that "[n]ormally the right to confront one's accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses." Id. at 53, 107 S.Ct. 989. Ultimately, the court held, the Confrontation Clause is concerned primarily with "specific statutory or court-imposed restriction[s] at trial on the scope of questioning." Id. at 53-54, 107 S.Ct. 989.
Other courts of appeals have adopted the vision of the Confrontation Clause expounded in Fensterer and Ritchie. See, e.g., United States v. Watson, 650 F.3d 1084, 1088 (8th Cir.2011) (declining to find a Confrontation Clause violation where a defendant's inability to cross-examine a witness on a particular point was not attributable to the trial court (citing Fensterer, 474 U.S. at 19, 106 S.Ct. 292)); Middlebrooks v. Bell, 619 F.3d 526, 542 (6th Cir. 2010) (noting that Ritchie held that where "the trial court permit[s a defendant's] attorney to cross examine [a witness] with no limitations aside from routine evidentiary rulings, it [does] not impinge on his confrontation rights"); Rizzo v. Smith, 528 F.3d 501, 506 (7th Cir.2008) (noting that Ritchie held that "`the right to confrontation
We agree with our sister circuits, and hold that Ross was not denied a "full and fair opportunity" to cross-examine Erwin. There were no "specific statutory or court-imposed restriction[s] ... on the scope of questioning" at Ross's second trial. Ritchie, 480 U.S. at 53-54, 107 S.Ct. 989. If Ross had discovered Thornton's testimony prior to the second trial, he could have cross-examined Erwin about that testimony. Ross's failure to cross-examine Erwin about Thornton's testimony cannot be attributed to any decision by the court, or statutory limitation on the scope or nature of Erwin's cross-examination at the second trial. Under Fensterer and Ritchie, Ross had what the Confrontation Clause guaranteed—"an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (quoting Fensterer, 474 U.S. at 20, 106 S.Ct. 292). Ross's claim is simply not a cognizable Confrontation Clause claim.
We also consider it significant that when the trial judge declared Erwin unavailable, the judge had not been informed of any newly-discovered evidence. Only after Erwin had been excused, his testimony had been read into the record, and the Commonwealth had rested its case, did trial counsel raise the issue of Thornton's testimony.
Ross's interpretation of the Confrontation Clause would allow a defendant to place a trial judge in a difficult situation: the judge would either have to declare a mistrial because the defendant's right to confront was violated, or the judge would have to delay trial to recall the Government witness, who may well have been transported back to prison, to testify about the newly-discovered evidence. Such a result would encourage defendants to hide any newly-discovered evidence from a trial judge, creating the possibility of a Confrontation Clause violation that might justify
This is not to say that a defendant in Ross's situation is somehow frozen in time, precluded from introducing newly-discovered evidence in a later trial. There are other constitutional avenues by which a defendant might introduce such newly-discovered evidence. Ross may have had grounds to bring an ineffective assistance of counsel claim arising out of trial counsel's failure to raise Thornton's testimony earlier at trial. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Had trial counsel raised the issue at an appropriate time, he may have been able to elicit from Erwin a statement inconsistent with his alleged statement to Thornton. If counsel had elicited such a statement, Thornton's testimony may have been admissible as extrinsic evidence of Erwin's prior inconsistent statement. See Pa. R. Evid. 613(b) ("[E]xtrinsic evidence of a prior inconsistent statement by a witness is admissible only if, during the examination of the witness,... the witness is given an opportunity to explain or deny the making of the statement...."), 801(c) ("`Hearsay' is a statement... offered in evidence to prove the truth of the matter asserted."). Instead, trial counsel chose not to raise the issue of Thornton's testimony on the record while the trial judge was considering Erwin's availability.
Additionally, the Due Process Clause guarantees a defendant the "right to have clearly exculpatory evidence presented to the jury, at least when there is no strong countervailing systemic interest that justifies its exclusion[.]" United States v. Herman, 589 F.2d 1191, 1204 (3d Cir.1978). As a result, "a defendant's right to due process can be violated by strict rules of evidence that prevent a defendant from presenting clearly exculpatory evidence to the jury[.]" United States v. Mike, 655 F.3d 167, 171 (3d Cir.2011). A defendant in Ross's situation may be able to petition a trial judge to admit otherwise inadmissible evidence on due process grounds. See, e.g., United States v. Prochilo, 629 F.3d 264, 271 (1st Cir. 2011) (rejecting a Confrontation Clause claim regarding newly-discovered impeachment evidence on the ground that "[t]he Supreme Court has thus far only evaluated... claims like [the defendant's] under the Due Process Clause of the Fifth and Fourteenth Amendments." (citing Ritchie, 480 U.S. at 51-54, 107 S.Ct. 989)). We do not, and cannot, opine on the merits of such claims; Ross has only raised and exhausted his claim under the Confrontation Clause.
Our holding today is limited to the case before us. We hold only that Ross was not denied his Sixth Amendment rights under the Confrontation Clause where Ross's inability to cross-examine Erwin about Thornton's testimony cannot be attributed to a limitation imposed by the trial court or by statute. Ross had a full and fair opportunity to cross-examine Erwin at the second trial within the meaning of the Sixth Amendment. His Confrontation Clause rights were not violated when Erwin's prior testimony was read into the record at his third trial.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. Ross argues that he was denied his Sixth Amendment right to effective assistance of counsel when trial counsel failed to introduce evidence of Erwin's crimen falsi conviction for making a false report to law enforcement. Under
To show deficient performance, "a person challenging a conviction must show that counsel's representation fell below an objective standard of reasonableness.... The challenger's burden is to show that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011) (internal quotation marks and citations omitted).
There is no question that counsel's performance was deficient. A crimen falsi conviction for false reports is obviously important impeachment evidence, and the Commonwealth concedes as much. There is no apparent strategic reason that might explain or excuse counsel's mistake. Thus, viewed objectively, Ross's counsel unreasonably failed to introduce such impeachment evidence.
In addition to deficient performance, however, Ross must also show prejudice. "With respect to prejudice, a challenger must demonstrate `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.'" Richter, 131 S.Ct. at 787 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). "That requires a `substantial,' not just `conceivable,' likelihood of a different result." Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011). "It is not enough `to show that the errors had some conceivable effect on the outcome of the proceeding.'" Richter, 131 S.Ct. at 787 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). In assessing prejudice, a court "must consider the totality of evidence before the judge or jury." Strickland, 466 U.S. at 695, 104 S.Ct. 2052.
The PCRA Court concluded that there was no prejudice here because the Commonwealth read into the record Erwin's other crimen falsi convictions, which included two convictions for burglary, two convictions for retail theft, two convictions for receiving stolen property, and two convictions for theft. There was not a reasonable probability, the PCRA Court concluded, that reading one more conviction into the record would have led to a different result. Ross argues that Erwin's false reports conviction is more damaging to Erwin's credibility than his other convictions, and so its omission was prejudicial.
A false reporting conviction may well be more prejudicial than any one of Erwin's other convictions. Depending on the facts underlying the conviction, a jury might infer that the similarities between Erwin's previous false report and his report against Erwin implied that Erwin had lied at the second trial. We cannot say, however, that the PCRA's conclusion was an unreasonable application of Strickland. The jury was told that Erwin had been convicted of eight separate crimes over a span of ten years. The PCRA Court could reasonably have concluded that the jury already discredited Erwin's testimony to the point where the incremental impact of one additional conviction on Erwin's credibility was minimal. Because the PCRA Court could reasonably have concluded that Ross failed to demonstrate prejudice,
Ross raises two claims arising out of the trial judge's in camera conference with the juror, arguing that: (1) the trial judge denied Ross his right to a fair trial by giving instructions to a single juror; and (2) the trial judge denied Ross his right to be present at the conference.
Generally, "communications between the court and the jury should be made in the presence of all of the jurors." United States v. Gullia, 450 F.2d 777, 779 (3d Cir.1971). Impermissibly influencing an individual juror may violate a criminal defendant's "Sixth Amendment right to a fair trial before an impartial jury[.]" United States v. Bertoli, 40 F.3d 1384, 1392 (3d Cir.1994). Just because a judge has a conversation with a single juror, however, does not mean that the judge has committed constitutional error. Rather, as we emphasized in United States v. Rabb, 450 F.2d 343 (3d Cir.1971) (per curiam), whether or not the judge's conversation constitutes reversible error depends on the nature of the conversation and the "extent and type" of any additional instructions. Id. at 343-44.
In Gullia, we held that a trial judge erred where he held a conference with a juror who suggested that she might want to hold out and not vote guilty. The trial judge told her that if she held out, "we have just wasted two weeks" and gave the juror extensive, substantive instructions regarding the legal standards at issue in the case. Gullia, 450 F.2d at 778-79. In Rabb, on the other hand, the judge did not elaborate on the evidence, and merely informed the juror that his recollection of the evidence controlled. Rabb, 450 F.2d at 343. As a result, we declined to find reversible error. Id.
The trial judge's conference with the juror here is far closer to the conduct upheld in Rabb. The judge did not elaborate on any evidence, and repeatedly emphasized that it was the juror's job to weigh the evidence presented at trial to reach a verdict. At no point did the juror, like the juror in Gullia, equivocate on the issue of Ross's guilt. Rather, the juror repeated that she believed Ross was guilty, but that she was afraid to deliver a verdict out of fear of retribution.
Ross argues that he had a constitutional right to be present at the in camera conference. The Due Process Clause of the Fifth and Fourteenth Amendments guarantee a criminal defendant the right "to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge."
Gagnon is instructive. There, a criminal defendant in a multi-defendant trial was seen sketching portraits of the jury during the trial. A juror expressed a safety concern over the incident. The trial judge held an in camera conference with the juror, in the presence of counsel for the defendant who was seen sketching the portraits, but excluding the defendants themselves. On appeal, the defendants claimed that they were denied their Fifth Amendment right to be present at the conference. The Supreme Court disagreed, holding that the defendants' presence "was not required to ensure fundamental fairness or a reasonably substantial ... opportunity to defend against the charge." Gagnon, 470 U.S. at 527, 105 S.Ct. 1482 (internal quotation marks omitted).
The Court emphasized that the defendant whose conduct had resulted in the conference had counsel present. Id.; see also United States v. Fernandez-Hernandez, 652 F.3d 56, 66 (1st Cir.2011) (finding no Due Process violation where counsel was present at in camera conference with juror); United States v. McCoy, 8 F.3d 495, 497 (7th Cir.1993) (same). Additionally, as the court observed, the defendants "could have done nothing had they been at the conference, nor would they have gained anything by attending. Indeed, the presence of [the defendants] ... could have been counterproductive." Gagnon,
The facts here are virtually indistinguishable from Gagnon. A juror expressed concerns about her safety. The trial judge held a conference to discuss matters extraneous to the questions at issue at trial. Ross's counsel was present to ensure that nothing prejudicial was said. Ross's presence would not have contributed to the fairness of the proceeding, and may well have been counterproductive, given that the juror was expressing concern about possible retaliation. Ross's Fifth Amendment rights were thus not violated by the trial judge's decision to hold the conference without his presence.
The writ of habeas corpus "is an extraordinary form of relief and is granted only to remedy constitutional error." Evans v. Sec'y Pa. Dept. of Corr., 645 F.3d 650, 656 (3d Cir.2011). Ross has not shown that he was deprived of his constitutional rights under the theories that he has advanced. We will affirm.
