NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                    No. 15-2807
                                   ____________

                                  ALONZO PRICE,
                                             Appellant

                                            v.

                         CHARLES WARREN;
            ATTORNEY GENERAL OF THE STATE OF NEW JERSEY;
                         JEFFREY S. CHIESA


                   On Appeal from the United States District Court
                            for the District of New Jersey
                      (D. C. Civil Action No. 1-12-cv-02238)
                    District Judge: Honorable Robert B. Kugler


                               Argued on July 11, 2017

                Before: MCKEE, AMBRO and ROTH, Circuit Judges

                           (Opinion filed: March 14, 2018)

Sean E. Andrussier, Esq. (ARGUED)
Chase Harrington
Kathleen Perkins
Laura Revolinski
Christine Umeh
Wenbo Zhang
Duke University School of Law
210 Science Drive
Box 90360
Durham, NC 27708
                    Counsel for Appellant
Gretchen A. Pickering, Esq. (ARGUED)
Cape May County Office of Prosecutor
4 Moore Road
DN-110
Cape May Court House, NJ 08210

                      Counsel for Appellee



                                         OPINION *
                                      ________________


ROTH, Circuit Judge

       Following two robberies that occurred on June 22 and 29, 2000, Alonzo Price was

tried, convicted, and sentenced to a term of life in prison, plus thirty years. At his trial,

the sole piece of evidence squarely linking him to the robberies was a cigarette butt with

his DNA on it. The butt was allegedly recovered from one of the crime scenes.

However, the chain of custody of this cigarette butt was poorly documented, raising the

possibility that the butt with Price’s DNA on it did not come from the crime scene.

Despite this irregularity, defense counsel never addressed the chain of custody at trial.

Price has filed for a writ of habeas corpus, arguing that his counsel provided ineffective

assistance in violation of the Sixth Amendment because counsel failed to attack the chain

of custody of the cigarette butt. We conclude that counsel was ineffective and that Price

was prejudiced thereby. Thus, we will grant the writ.




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                               2
                                       I. Background

                                          A. Facts

         The two robberies were conducted in a similar manner: In each, the robber cut

open a window screen to enter the victim’s home in the early hours of a Thursday

morning, threatened the victim with a sharp object, climbed on top of her, bound her

hands with torn strips of her bedding, and stole jewelry and cash before leaving. The

victims, Sadie Hamer and Mary Perez, gave fairly similar descriptions of the robber: an

African American male, roughly 5’9” and 175 pounds (or “medium build”), wearing a

red shirt during the Hamer robbery and a gray shirt and denim shorts during the Perez

robbery. 1 Perez described his breath as smelling of cigarettes and possibly alcohol. 2

         Each victim called the police, and several officers, including Detective William

Scull, responded. Mary Perez told the officers that the voice of the robber sounded like

Price, 3 that it might be Price, 4 and that the robber might have been trying to disguise his

voice. 5 She knew Price because he was a customer at the pharmacy where she worked

part-time. 6 However, she did not want to rule anyone out. 7

         Perez had told the robber that she had money in her purse in her car nearby. It was

when he left her apartment to find the purse that she called the police. When officers

, 229, 242-43.

.

.

.

.
7
  Hamer also knew Price—they had known each other all their lives, App. 253—and she
heard the robber’s voice, but she did not specifically identify Price as the robber.
                                              3
searched Perez’s car, they found a pair of scissors that did not belong to her. During the

robbery, the robber had held something sharp against Perez’s neck. Police suspected that

the scissors may have been that sharp object. None of the police officers who came to

Perez’s apartment that night to investigate the robbery saw a cigarette butt on the roof

outside the cut window screen.

       Although the description of the robber did not match Price’s size and weight -- his

height is 6’3” and at the time he weighed 225 pounds -- Scull and Detective Karl Ulbrich

arrested Price at his place of work on the afternoon after the Perez robbery. 8

       On that evening, Perez returned briefly to her apartment with two friends, one of

whom was Carmen Pierce. Pierce noticed a filterless cigarette butt on the roof outside

the window through which the robber had entered. Pierce went out on the roof and

picked up the butt, using a tissue. Perez and Pierce contacted the police, and Scull came

to collect the cigarette butt. Accounts differ regarding what Scull did next with the

cigarette butt, but he appears to have placed it into an envelope of some sort. 9 He took no

notes or photographs 10 of the cigarette butt and did not log in the butt, 11 even though he

had recorded in a log the other items that he recovered from the scene. The first written

reference to the cigarette butt is a week later, when the evidence was sent to a lab for


8
  They created an arrest warrant related to an old traffic matter, but the arrest warrant was
invalid; it was not signed by a judicial officer.
9
  Perez testified that she saw Scull place the cigarette butt in a plastic bag, although Scull
said that he placed the item in an envelope; Scull and Pierce both identified the envelope
at trial.
10
   Four months later, he returned to take pictures that used a paint can lid to show where
the butt was found, but the lid was placed inaccurately. App. 140.

.
                                              4
testing. The date on the lab paperwork is faded, but there is no dispute that it reads July

6, 2000. 12 Scull later wrote that he turned the envelope containing the cigarette butt over

to Ulbrich. However, although Ulbrich’s investigation report mentions every piece of

evidence that he handled and notes that these items were secured in the police station’s

temporary evidence locker, the report does not say the same of the cigarette butt.

Ulbrich’s report states merely that “Scull took the item into evidence and obtained the

information regarding it’s discovery and collection.” 13 He nowhere states that Scull gave

the butt to him.

       A few hours after collecting the cigarette butt, Scull and other officers executed a

search warrant on Price’s room in the boarding house where he lived. They found an

ashtray full of filtered and unfiltered cigarette butts. 14 Price claims that it was one of

these butts that was substituted by the police for the butt found on the roof and that was

then found to contain Price’s DNA.

       As a result of the search, the officers seized a gray T-shirt and a pair of denim

shorts. 15 They did not find a red T-shirt or any of the missing jewelry or money.

       Following the investigation, the one piece of tangible evidence that directly

connected Price to the robberies was the cigarette butt. Pierce was not able to verify at

trial that it was the same butt that she had recovered from the roof; by the time of trial,




12
   See 3d Cir. Dec. 20, 2016 Modified Record, p. 213; see also 

Appellant Br. 5.

.

.

.
                                               5
lab testing had shredded the butt. 16 Scull did testify that it was the same butt. The State

lab tested the butt that was sent to the lab by the police and found that saliva on the butt

contained DNA matching Price’s DNA. This result placed Price outside the window to

Perez’s apartment around the time of the robberies. 17

       The remaining evidence was mixed. Price owned a pair of scissors similar to

those found in Perez’s car, 18 his landlady testified that she had seen Price in their shared

bathroom cutting his hair with the scissors; 19 but, when at trial, she saw the scissors found

in Perez’s car, she said that Price’s scissors were larger; 20 the gray T-shirt from Price’s

room had red fibers on it, but those red fibers did not match anything from either victim’s

residence; 21 and the torn parts of the pillow shams, which the State initially had argued

were held in the robber’s teeth while he tied up the victims, 22 had saliva with DNA that

did not match Price’s DNA. Furthermore, none of the physical evidence from the Hamer

crime scene was connected with Price, and the State later stipulated that human hair

.
17
   It had been lightly raining or misty the night of the Perez robbery and had been raining
on previous nights so that it was unlikely that the butt would have remained in relatively
good condition if it had been there for very long. Scull testified that when he first saw
the butt it was in relatively good condition. App. 272. Thus, if Price had left the butt on
the roof, he had done so recently.

.

. When the officers searched Price’s room, they did not search the bathroom.
App. 296.
20
   Perez’s landlord, who had seen Price’s scissors, testified to this effect. App. 160
(“These look smaller.”); App. 161 (“To me I think [Price’s scissors] were bigger.”). The
search of Price’s room, did not turn up any scissors.

.
22
   Dkt. 9-17, Exhibit A. The State argued this point to the grand jury before knowing the
results of the DNA tests.
                                               6
recovered from one or both of the scenes, which was suspected to be from the robber, did

not come from Price. 23

       Other items suggested a possible connection between Price and at least the Perez

robbery: The denim shorts recovered from Price’s room contained cedar fibers, and the

roof outside Perez’s window had cedar shingles; 24 the carpet fibers found on the denim

shorts recovered from Price’s room were of the same material and colored with the same

type of dye as those in Perez’s carpet. 25 However, Price worked in a recycling facility, 26

and no one at trial was able to exclude the possibility that Price encountered those

materials on the job (or somewhere other than Perez’s home).

                                  B. Procedural History

       In August 2004, in New Jersey Superior Court, Price was tried and convicted of

burglary, robbery, and a number of other charges related to the Hamer and Perez

robberies. 27 On November 15, 2006, the Superior Court’s Appellate Division affirmed

all convictions except one not relevant here. On March 17, 2007, the New Jersey

Supreme Court denied a petition for certification.

       On April 23, 2007, Price filed pro se for postconviction relief (PCR) and was

appointed an attorney. PCR counsel raised numerous claims, including an ineffective


23
   Dkt. 9-17, p. 1. The State so stipulated because it was required to do so in the
procedural posture in which it appeared. Dkt. 10-15, p. 26 (Tr. 48-49). At a minimum, it
is not known whether the hair, if tested, would match Price’s.

.

, 314.

.
27
   Price was initially tried and convicted in 2001, but his conviction was overturned on
appeal due to a juror issue not relevant here.
                                              7
assistance of counsel claim based on the failure of defense counsel at trial to challenge

the chain of custody of the cigarette butt. 28 On January 14, 2009, the PCR court denied

relief. Price appealed pro se. On March 8, 2011, the Appellate Division affirmed. 29 On

July 22, 2011, the New Jersey Supreme Court denied a petition for certification.

       In April 2012, Price filed a pro se federal habeas corpus petition raising several

claims, which the District Court denied on June 30, 2015. 30 On August 25, 2016, this

Court granted a certificate of appealability “on the issue of whether trial counsel was

ineffective for failing to request suppression or otherwise challenge the chain of custody

of the cigarette butt that was admitted into evidence.” 31

                                      II. Discussion 32

                                  A. Standard of Review

       In this case, we directly review the District Court’s opinion, to which we give no

deference because the District Court did not hold an evidentiary hearing. 33 The District

Court collaterally “review[ed] the ‘last reasoned decision’ of the state courts on the


28
   See, e.g., Dkt. 10-15, p. 5 (Tr. 6) (“[The] chain of custody is where to start and no one
went there.”); 

(Tr. 15) (“[I]n a DNA case, you look at chain of custody. That’s
the first place you go. They didn’t do that. They didn’t make the argument about chain
of custody.”); see also Dkt. 9-15, p. 12 (“CIGARETTE BUTT—CHAIN OF
CUSTODY”).
29
   Dkt. 9-22.
30
   Price v. Warren, No. 12-2238, 

(D.N.J. June 30, 2015).

.
32
   The District Court had jurisdiction over this habeas petition under 28 U.S.C. § 2254;
we have jurisdiction under 28 U.S.C. §§ 1291 and 2253.
33
   Branch v. Sweeney, 

, 232 (3d Cir. 2014) (“Because the District Court did
not hold an evidentiary hearing and, instead, based its decision on its review of the state
court record, we apply a plenary standard of review of its decision and order.”) (citing
Duncan v. Morton, 

, 196 (3d Cir. 2001)).
                                              8
petitioner’s claims.” 34 We cannot grant a writ of habeas corpus to a state prisoner unless

the last reasoned state court 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) resulted in a decision that was based on an unreasonable determination
       of the facts in light of the evidence presented in the State court
       proceeding. 35

       Here, the District Court correctly determined that the last reasoned state court

decision was that of the Appellate Division. In declining to grant the writ, the District

Court largely relied on the reasoning of the Appellate Division, so we will primarily

review the Appellate Division’s opinion. 36

                           B. Ineffective Assistance of Counsel

       The claim made in the state courts and renewed here is that defense counsel

provided ineffective assistance of counsel. 37 We review such claims under the standards

in Strickland v. Washington, 38 which has two prongs: performance and prejudice.

                                      1. Performance

       Under Strickland, we first must consider whether “counsel’s representation fell

below an objective standard of reasonableness.” 39 “A convicted defendant making a


34
   Robinson v. Beard, 

, 324 (3d Cir. 2014) (citing Simmons v. Beard, 

, 231-32 (3d Cir. 2009)).
35
   28 U.S.C. § 2254(d).
36
   The Appellate Division adopted a portion of the PCR court’s reasoning; we will treat
that portion as part of the Appellate Division’s opinion as well.
37
   Price made numerous other claims in the state courts, but no others are before us.
38
   

, 687 (1984).
39
   Outten v. Kearney, 

, 414 (3d Cir. 2006) (citing 

).
                                              9
claim of ineffective assistance must identify the acts or omissions of counsel that are

alleged not to have been the result of reasonable professional judgment.” 40 “[A] single,

serious error may support a claim of ineffective assistance of counsel . . ..” 41

       Here, Price argues that defense counsel should have addressed the chain of

custody of the cigarette butt. Under New Jersey law, ordinarily “a defect in the chain of

custody goes to the weight . . . of the evidence introduced.” 42 Hence, we consider

whether counsel should have argued to the jury that the defects in the chain of custody

here suggest that the cigarette butt should be disregarded as unreliable. 43

       The Appellate Division provided two reasons for holding that counsel’s

performance was not deficient. First, the Appellate Division observed the sequence of

events: Pierce found the butt, Scull retrieved it, and then Scull and other officers

searched Price’s room. From this sequence, the Appellate Division concluded that

officers could not have planted a butt from Price’s home before Pierce found it; they did

not have access to Price’s home until afterward. 44 Hence, the Appellate Division

concluded that a chain of custody argument would have been implausible, and counsel

was not deficient for failing to advance an implausible argument.



40
   

.
41
   Kimmelman v. Morrison, 

, 383 (1986).
42
   State v. Morton, 

, 260 (N.J. 1998) (quoting United States v. Matta-
Ballesteros, 

, 769 (9th Cir. 1995)) (internal quotation marks omitted).
43
   Price also argues that counsel should have filed a motion to suppress the cigarette butt
before trial. Because we decide that counsel was ineffective for failing to challenge the
chain of custody during trial, we do not address whether counsel also should have filed a
motion to suppress before trial.
44
   Dkt. 9-22, p. 4.
                                              10
       However, this analysis depends on a serious error. The chain of custody refers to

what happens to evidence after the police retrieve it, not before. The fact that officers

could not have planted the cigarette butt before retrieving it has no bearing on whether

officers mishandled the butt after retrieving it. The Appellate Division’s apparent

determination otherwise was an unreasonable determination of fact.

       Second, the Appellate Division asserted that Price’s defense counsel was not

deficient because she had “attempted unsuccessfully to discredit the cigarette butt’s chain

of custody.” 45 This, too, was an unreasonable determination of fact. The Appellate

Division was referring to defense counsel’s argument that Price might not have left the

butt on the roof before the robbery; instead, he might have gone to the store under Perez’s

apartment during the day after the robbery and flipped the cigarette butt onto the roof

then. 46 This is not a chain of custody argument; counsel’s argument referred to what

happened before Scull retrieved the butt, not after.

       If we focus on what happened after Pierce gave the butt to Scull, the trial

transcripts show that Price’s counsel never attempted to discredit the chain of custody of

the cigarette butt. To the contrary, she conceded that the cigarette butt that was tested

was the butt found by Pierce – i.e., that the chain of custody was beyond question. 47 This

concession demonstrates further ineffective assistance of counsel. The concession


45
    Dkt. 9-22, p. 4.
46
    This probably was not possible; Price was at work or under arrest for all or nearly all of
the relevant period.
47
    See App. 333 (“[Piece] went and got [the cigarette butt] and gave it to Detective Scull. .
. . We know that ultimately it’s tested. And that the DNA is linked to, reasonable
certainty to Alonzo Price. It was his cigarette.”).
                                             11
negated any possible attack on the chain of custody after Pierce gave the butt to Scull on

the evening of June 22. It was, however, during this period that the records of custody

are lacking.

       Accordingly, we conclude that the state court’s adjudication of Price’s ineffective

assistance claim depended on unreasonable determinations of fact. For this reason, we

will not defer to it under the Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA). When we have so concluded, but our reasons for rejecting AEDPA deference

do not in themselves decide the merits of the claim, we next consider the claim de novo. 48

Thus, we now must evaluate the performance prong.

       Clearly, competent counsel would have addressed the chain of custody. The

cigarette butt was the single most important piece of evidence for the prosecution, 49 and

the chain of custody was the single greatest weakness in that evidence. Cigarette butts

are ubiquitous, almost indistinguishable, and easily substituted one for another by a

person wishing to do so. Here, there were considerable irregularities in the

documentation of the butt. As a result, defense counsel should argue that Scull (or


48
   Hurles v. Ryan, 

, 778 (9th Cir. 2014) (“If we determine, considering only
the evidence before the state court, that . . . the state court’s decision was based on an
unreasonable determination of the facts, we evaluate the claim de novo . . ..”); Siehl v.
Grace, 

, 196 (3d Cir. 2009) (“[A]ssessing the ineffective assistance claim in
light of all the circumstances, we conclude that the Superior Court’s application of
Strickland in this case was not objectively reasonable and that the District Court was
entitled to review the record de novo.”).
49
   The prosecution placed considerable emphasis on the cigarette butt throughout the trial,
including opening and closing arguments. See Dkt. 10-6, p. 37 (presenting the cigarette
butt as the penultimate piece of evidence in opening argument and described it as
establishing “[b]eyond a shadow of a doubt” that Price committed the Perez robbery.);
App. 336 (ending closing argument by discussing the cigarette butt).
                                            12
another officer) may have had the butt from Perez’s apartment in his possession when the

officers found many similar butts in Price’s room and should have explored whether any

of the officers present, intentionally or unintentionally, switched one butt for another.

Under these circumstances, defense counsel’s failure to challenge the chain of custody

was an inexcusable failure on the part of that attorney. Moreover, to concede that the butt

tested at the lab was the same butt found on the roof was an even greater demonstration

of ineffectiveness.

         As the New Jersey courts have held: “[W]here the incriminating object has passed

out of the possession of the original receiver and into the possession of others, the ‘chain

of possession’ must be established to avoid any inference that there has been substitution

or tampering.” 50 We can find no rational reason here why an effective attorney would

not challenge the custody of the cigarette butt between the time when Pierce gave it to

Scull and the time when it was produced in the courtroom.

                                         2. Prejudice

         Under Strickland, we next ask whether “the deficient performance prejudiced the

defense.” 51 Prejudice is established when “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




50
  State v. Brown, 

, 484-84 (N.J. Super. 1968) (citing State v. Johnson, 

(N.J.Super 1965) affirmed 

(N.J. 1966)).
51
     

.
                                              13
outcome.” 52 The Appellate Division did not address prejudice, so we consider prejudice

without any deference. 53

       We believe that there is a reasonable probability that, had a chain of custody

challenge been made, the jury would have harbored reasonable doubt about the cigarette

butt: Why wasn’t it logged in as were the other exhibits? Did a police officer,

deliberately or not, substitute it for one of the butts from the ash tray in Price’s room?

Did that police officer want to nail Price for the robbery, particularly in view of the

conflicting nature of the evidence that the police were gathering? A jury presented with

such doubt about the cigarette butt may not have voted to convict. Also, if the jury chose

to disregard the butt due to the defects in its chain of custody, the remaining evidence

was mixed: for example, the physical description of the suspect that didn’t match Price,

the questions about the voice identification, the discrepancy in the size of the scissors, the

red fibers that didn’t match anything at either victim’s residence, the torn strips of pillow

shams that contained someone else’s DNA, the recovered hair that wasn’t Price’s. This

may well have created reasonable doubt in the mind of a juror. If the jury began to doubt

police procedures regarding the cigarette butt, they might have become concerned about

the other pieces of evidence. 54 In these circumstances, we are not confident in the

outcome of this trial; there is a reasonable probability that, but for counsel’s failure to


52
   

53
   Panetti v. Quarterman, 

, 953 (2007); Rompilla v. Beard, 

,
390 (2005).
54
   See Lambert v. Blackwell, 

, 256 (3d Cir. 2004) (describing the falsus in
uno, falsus in omnibus principle, which permits a jury to disregard part or all of a
witness’s testimony if the witness has testified falsely about a material fact).
                                              14
challenge the chain of custody of the cigarette butt, the result of the proceeding would

have been different.

                                     III. Conclusion

       For the foregoing reasons, we conclude that counsel was ineffective and that Price

was prejudiced thereby. We will reverse the judgment of the District Court and direct

that the writ of habeas corpus be granted. The State must release Price or grant him a

new trial within six months of the date of the judgment accompanying this opinion.




                                            15